1. Before me is a habeas corpus application involving the disappearance of three Kenyan citizens namely; Evans Otieno, Michael Oloo Osoro, Macmillan Kiarie Mugo.
2. The subjects are said to have disappeared on diverse dates under circumstances that their kin believe had the involvement of officers drawn from the 1 st , 2 nd and 3 rd respondents who fall under the command of the Inspector General of police.
3. The applicants opened their case before this court and along the way sought the joinder of the Independent Policing Oversight Authority and the Kenya National Commission on Human Rights as interested parties in the matter.
4. The two agencies were served with the applications for joinder and they both acceded to being enjoined as interested parties each citing their respective mandates under the law as the basis of the interest in the matter.
5. The advocates for the families of the subjects moved this court to order the two interested parties to continue with investigations into the circumstances leading to the disappearance of the subjects since, according to counsel for the families, the two agencies had pleaded statutory bar to their investigation into the matters.
6. The court was further informed that the Independent Policing Oversight Authority despite receipt of complaints from the families could not proceed with investigations since the matter was in court by dint of Section 26 of the IPOA Act.
7. The Kenya National Commission of Human Rights similarly was said to have received complaints from the affected families but could similarly not undertake investigations citing the provisions of Section 30 of their Act which bars them from conducting investigations into a matter that is before court.
8. On the 18 th August 2026 this court was told by Mr. Kipkuto Counsel for IPOA that indeed that was the position of the Authority though he acknowledged that they had received the complaints and opened inquiry files details of which he provided to the court. Mr Kipkuto appeared for IPOA together with Mr. Kassim.
9. The Kenya National Commission of Human Rights on its part similarly through Ms Okutimba acknowledged receipt of the complaints about the 3 subjects but argued that just like IPOA they were unable to proceed with investigations citing Section 30 of the Kenya National Commission of Human Rights Act which bars investigations into matters that are pending in court.
10. The interested parties urged this court to consider whether by dint of Articles 23 and 165 of the Constitution, the court could issue an order directing them to resume investigations not withstanding the provisions of Section 26 of the IPOA Act and Section 30 of the KNCHR Act.
11. The position was supported by the applicant’s counsel who maintained that the two agencies cannot abandon investigations into the disappearance of the subjects simply because the habeas corpus proceedings are ongoing.
12. The applicants counsel argued that the two provisions are unconstitutional to the extent that they bar the interested parties from performing their function of investigations.
13. Mr. V. Nyamodi SC appearing for the respondents argued that the court cannot declare the two statutory provisions unconstitutional without a substantive petition two challenge the constitutionality of the provisions.
14. According to Mr. V. Nyamodi SC if the intention of the applicants was to have the provision declared to be unconstitutional then they ought to have filed a substantive petition to challenge the same so as to offer opportunity to the respondents to respond substantively on the matter. He therefore urged the court to decline the invitation to strike down the two provisions.
ANALYSIS AND DETERMINATION
15. The nature of this habeas corpus proceedings is that they are intended to secure the production of the subjects who are allegedly held by the respondents. The proceedings are not geared towards determining the guilt or innocence of anyone thus in the strict sense they are inquisitorial proceedings.
16. The duty of the court in proceedings of this nature is to ensure that the liberty of the individual who is the subject of habeas corpus proceedings is secured through an objective and fair process of enquiry. The court must strike a balance between the need to protect the community on the one hand and the necessity to preserve the liberty of a citizen on the other hand. No effort should be spared in uncovering the truth about the alleged detention.
17. The judge must remain firm throughout the proceedings and conduct the proceedings expeditiously ensuring that all any information that may help the court in resolving the matter is received in evidence and acted on by the court.
18. Lord Atkin in Liversidge V John Anderson, 1942 AC 206: 110 LJKB 724 (HL) had this to say regarding the attitude of some judges who are entrusted with determining questions that involve the liberty of individuals:
“I view with apprehension the attitude of judges who on a mere question of construction when faced with claims involving the liberty of the subject show themselves more executive minded than the executive.”
The court in habeas corpus proceedings does not hold brief for the executive and the duty of the court is strictly to interpret and apply the law in a manner that advances the course of securing the release of the subject from the hands of whomsoever may be holding them.
19. The court should task any agency of government that may be able to help with investigations into the whereabouts of the concerned subject without being inhibited by technicalities that may only serve to slow the wheels of justice and defeat the course of justice.
20. In Jage Ram v.Hans Raj MAidha1 (1972) 1 SCC 181 :AIR 1972 SC 12 1140 ,the Indian Supreme Court observed:
“In a habeas corpus petition where allegations are made that a citizen of this country is in illegal custody it is the duty of the Court to safeguard the freedom of the citizen which has been guaranteed to him by our Constitution and to immediately take such action as would ensure that no person however high or low acts in contravention of the law or in a high-handed, arbitrary or illegal manner. While no doubt it is the duty of the Court to safeguard against any encroachments on the life and liberty of individuals, at the same time we recognise that the authorities who have the responsibility to discharge their functions vested in them under the law of the country should not be impeded or interfered with, without justification .”(emphasis mine)
21. The provisions of Section 26 of the IPOA Act and Section 30 of the KNHRC Act cannot have been intended to bar investigations into a matter simply because it is before a court. The intention of the legislature must have been to bar investigations into a matter that is before court if such investigations may compromise the justice of the case.
22. It must be remembered that habeas corpus proceedings are proceedings sui generis in that there is no party who is likely to be prejudiced if investigations are carried on by government agencies even as the proceedings continue. The purpose of the intended investigations would in this courts view be to assist in uncovering the whereabouts of the subjects of the habeas corpus.
23. The investigations can only be of benefit to securing the liberty of the individuals as opposed to compromising the integrity of the instant proceedings.
24. In Inter-American Court of Human Rights Case of Velásquez-Rodríguez v. Honduras Judgment of July 29, 1988 (Merits) the court inquiring into the matter of enforced disappearances in Honduras observed;-
“Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon.
Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin American in the last few years. 150. The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion.”
25. In a case where a citizen is alleged to have been abducted in the manner that the subjects herein are alleged to have disappeared, the country must confront such incidents in an integral fashion where all investigative agencies created under the Constitution and by statute are summoned to action with a view to nipping the emerging trend in its bud to avert a situation where such disappearances and kidnappings become the norm threatening the right to life and liberty of citizens. The court must therefore in interpreting a statute that impacts on investigations into such incidents adopt a liberal approach to achieve goals of justice.
26. A restrictive interpretation of a statutory provisions would most likely lead the court to taking a position that limits the realization of the right to liberty of the subject of habeas corpus.
27. In Mboya v Attorney General; National Assembly & another (Interested Parties) (Petition 472 of 2017) [2018] KEHC 6933 (KLR) (Constitutional and Human Rights) (21 May 2018) (Judgment) held;-
“In searching for the purpose of the act, it is legitimate to seek to identify the mischief sought to be remedied by the legislation. In part, that is why it is helpful, where appropriate, to pay due attention to the social and historical background of the legislation. We are obliged to understand the provisions within the context of the grid, if any, of related provisions and of the Constitution as a whole, including the underlying values of the Constitution that must be promoted and protected. Although the text is often the starting point of any statutory construction, the meaning it bears must pay due regard to context. This is so even when the ordinary meaning of the provision to be construed is clear and unambiguous.
In construing the impugned provisions, we are obliged not only to avoid an interpretation that clashes with the Constitutional values, purposes and principles but also to seek a meaning of the provisions that promotes constitutional purposes, values, principles, and which advances rule of law, human rights and fundamental freedoms in the Bill of Rights. We are obliged to pursue an interpretation that permits development of the law and contributes to good governance. We are obliged to be guided by the provisions of Article 159 (e) which requires us to promote and protect the purposes and principles of the Constitution.’’
28. This court cannot therefore ignore the history of the country before the enactment of the Independent Policing Oversight Authority Act as well as the Kenya National Human Rights Commission Act. The two institutions were born out of a realization that there was need to subject the National Police Service to civilian oversight in order to promote accountability and the need to create an institution in the name and style of Kenya National Human Rights Commission with a specific mandate to deal with Human Rights issues whenever they arise.
29. The Commission on Human Rights under Article 249 1 (c) is enjoined to promote constitutionalism and in doing so the Commission is clothed with investigative powers to inquire into allegations of Human Rights violations in the country so as to promote constitutionalism and the observance of the Rule of Law. By enacting Section 30 of Kenya National Human Rights Commission Act the intention of the Parliament must have been to limit the investigative powers of the commission into any matter if those investigations were geared towards undermining proceedings before a court or tribunal. It is the view of this court that where investigations are geared towards promoting the interest of the administration of justice and that those investigations do not pose a threat to the proceedings before the court the Commission shall remain at liberty to continue with such investigations and so is the IPOA. In my view, this is the interpretation that accords with the duty of the court under Articles 10,20, 23, 165 & 259 of the Constitution.
30. The Independent Policing Oversight Authority Act Cap. 86 in its long title reads;-
“ An Act of Parliament to provide for civilian oversight of the work of the Police; to establish the Independent Policing Oversight Authority; to provide for its functions and powers and for connected purposes’’. The intention of parliament was to provide for civilian oversight especially where allegations are made against the police touching on the discharge of their mandate.
31. In these proceedings the applicants alleged that the subjects were arrested and are detained by the police. The police on the other hand have denied having arrested the subjects and that they have maintained throughout the proceedings that the subjects are not in their custody. The allegation of possible police involvement in the arrest and illegal detention is a matter that would automatically trigger the mandate of the Independent Policing Oversight Authority. Under Section 4 the Act provides:
Independence of the Authority.
(1) In the performance of its functions the Authority shall subject to section 34 , not be subject to any person, office or authority.
(2) The Authority shall observe the principle of impartiality and rules of natural justice in the exercise of its powers and the performance of its functions .
(3) Every Government officer or institution shall accord the Authority such assistance and protection as may be necessary to ensure its independence, impartiality, dignity and effectiveness.
(4) No person or body may interfere with the decision making, functioning or operations of the Authority.
(5) Parliament shall ensure that the Authority is adequately funded for it to effectively and efficiently perform all of its functions. ( emphasis added).
32. A reading of this Section leaves no doubt that the IPOA should remain independent in exercising its mandate. If one was to interpret Section 26 of the Act as barring the authority from conducting investigations into a matter simply because there are active proceedings in court touching on the subject matter, such a position would invite mischief makers into filing proceedings in court whenever an issue that would attract the intervention of IPOA so as to ward them off. To my mind adopting such an interpretation would be restrictive of the agency’s exercise of its mandate to the detriment of the rights of individuals affected by police actions.
33. In my view the restriction on investigations would only make sense where the proceedings being undertaken in court are geared towards determining the guilt or innocence of an accused person so as to avoid compromising their right to a fair trial.
34. I hold the view that given the nature of habeas corpus proceedings it would be against the spirit of the IPOA Act to stop the agency from undertaking investigations that may as well assist in tracing the subjects of the habeas corpus application and may as well absolve the police from the accusation that they are indeed the persons holding the subjects.
35. For the avoidance of doubt this court declines to travel the route of striking down the two provisions on grounds of unconstitutionality since in my view drawing from the mischief rule one can quickly discern that the Sections 26 of the IPOA Act and Section 30 of the KNHRC Act were meant to protect legal proceedings from investigations that may prejudice the interests of justice in the course of proceedings.
36. The signing by Kenya of the International Convention for the Protection of All Persons from Enforced Disappearance ADOPTED 20 December 2006 BY General Assembly of the United Nations in its resolution 61/177 , even though as a country Kenya is yet to ratify the Convention, is an indicator that Kenya appreciates the magnitude of the problem of enforced disappearances as global phenomena. The Convention provides under;-
Article 1
1. No one shall be subjected to enforced disappearance.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
Article 2
For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Article 3
Each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice .
37. The investigation of such incidents is thus a responsibility of the state through all its investigative agencies.
38. The Supreme Court of Nepal; Division Bench, Hon. Justice Mr. Khilaraj Regmi, Hon Justice Mr. Kalyan Shrestha in Writ no 3575, 100, 104, 323, 500, 45, 41, 155, 162, 164, 167, 97, 110, 111, 142, 211, 250, 223, 262, 378, 418, 485, 617, 632, 635, 54(0002) 0004, 2588/0038 dealing with a similar question of disappearances had this to say;- “Given that international norms require that the investigation of a disappeared person's status be pursued until such status is established, a commission of inquiry, as constituted under the Commission of Inquiry Act, cannot meet this standard. By the very nature of the act of disappearance, it is necessary that the families and relatives of disappeared persons are provided with the findings of the investigations and that the report is made public. The Commission of Inquiry Act does not ensure this.” (emphasis mine).
39. The fact that the police are investigating the matter should not exclude other investigative agencies from continuing with their investigation since each agency would be playing a complementary role in trying to trace, find and locate the subjects with a view to informing this court of their status.
40. Thus, not withstanding the provisions of Section 26 of the IPOA Act and Section 30 of the Kenya National Human Rights Commission Act Cap.71 the two agencies in the spirit of transparency and promotion of accountability, be and are hereby ordered to continue with their independent investigations into the circumstances leading to the arrest and disappearance of the subjects.
41. The Interested parties shall be under duty to share with this court the result of their findings.
42. It is so ordered.
2. The subjects are said to have disappeared on diverse dates under circumstances that their kin believe had the involvement of officers drawn from the 1 st , 2 nd and 3 rd respondents who fall under the command of the Inspector General of police.
3. The applicants opened their case before this court and along the way sought the joinder of the Independent Policing Oversight Authority and the Kenya National Commission on Human Rights as interested parties in the matter.
4. The two agencies were served with the applications for joinder and they both acceded to being enjoined as interested parties each citing their respective mandates under the law as the basis of the interest in the matter.
5. The advocates for the families of the subjects moved this court to order the two interested parties to continue with investigations into the circumstances leading to the disappearance of the subjects since, according to counsel for the families, the two agencies had pleaded statutory bar to their investigation into the matters.
6. The court was further informed that the Independent Policing Oversight Authority despite receipt of complaints from the families could not proceed with investigations since the matter was in court by dint of Section 26 of the IPOA Act.
7. The Kenya National Commission of Human Rights similarly was said to have received complaints from the affected families but could similarly not undertake investigations citing the provisions of Section 30 of their Act which bars them from conducting investigations into a matter that is before court.
8. On the 18 th August 2026 this court was told by Mr. Kipkuto Counsel for IPOA that indeed that was the position of the Authority though he acknowledged that they had received the complaints and opened inquiry files details of which he provided to the court. Mr Kipkuto appeared for IPOA together with Mr. Kassim.
9. The Kenya National Commission of Human Rights on its part similarly through Ms Okutimba acknowledged receipt of the complaints about the 3 subjects but argued that just like IPOA they were unable to proceed with investigations citing Section 30 of the Kenya National Commission of Human Rights Act which bars investigations into matters that are pending in court.
10. The interested parties urged this court to consider whether by dint of Articles 23 and 165 of the Constitution, the court could issue an order directing them to resume investigations not withstanding the provisions of Section 26 of the IPOA Act and Section 30 of the KNCHR Act.
11. The position was supported by the applicant’s counsel who maintained that the two agencies cannot abandon investigations into the disappearance of the subjects simply because the habeas corpus proceedings are ongoing.
12. The applicants counsel argued that the two provisions are unconstitutional to the extent that they bar the interested parties from performing their function of investigations.
13. Mr. V. Nyamodi SC appearing for the respondents argued that the court cannot declare the two statutory provisions unconstitutional without a substantive petition two challenge the constitutionality of the provisions.
14. According to Mr. V. Nyamodi SC if the intention of the applicants was to have the provision declared to be unconstitutional then they ought to have filed a substantive petition to challenge the same so as to offer opportunity to the respondents to respond substantively on the matter. He therefore urged the court to decline the invitation to strike down the two provisions.
ANALYSIS AND DETERMINATION
15. The nature of this habeas corpus proceedings is that they are intended to secure the production of the subjects who are allegedly held by the respondents. The proceedings are not geared towards determining the guilt or innocence of anyone thus in the strict sense they are inquisitorial proceedings.
16. The duty of the court in proceedings of this nature is to ensure that the liberty of the individual who is the subject of habeas corpus proceedings is secured through an objective and fair process of enquiry. The court must strike a balance between the need to protect the community on the one hand and the necessity to preserve the liberty of a citizen on the other hand. No effort should be spared in uncovering the truth about the alleged detention.
17. The judge must remain firm throughout the proceedings and conduct the proceedings expeditiously ensuring that all any information that may help the court in resolving the matter is received in evidence and acted on by the court.
18. Lord Atkin in Liversidge V John Anderson, 1942 AC 206: 110 LJKB 724 (HL) had this to say regarding the attitude of some judges who are entrusted with determining questions that involve the liberty of individuals:
“I view with apprehension the attitude of judges who on a mere question of construction when faced with claims involving the liberty of the subject show themselves more executive minded than the executive.”
The court in habeas corpus proceedings does not hold brief for the executive and the duty of the court is strictly to interpret and apply the law in a manner that advances the course of securing the release of the subject from the hands of whomsoever may be holding them.
19. The court should task any agency of government that may be able to help with investigations into the whereabouts of the concerned subject without being inhibited by technicalities that may only serve to slow the wheels of justice and defeat the course of justice.
20. In Jage Ram v.Hans Raj MAidha1 (1972) 1 SCC 181 :AIR 1972 SC 12 1140 ,the Indian Supreme Court observed:
“In a habeas corpus petition where allegations are made that a citizen of this country is in illegal custody it is the duty of the Court to safeguard the freedom of the citizen which has been guaranteed to him by our Constitution and to immediately take such action as would ensure that no person however high or low acts in contravention of the law or in a high-handed, arbitrary or illegal manner. While no doubt it is the duty of the Court to safeguard against any encroachments on the life and liberty of individuals, at the same time we recognise that the authorities who have the responsibility to discharge their functions vested in them under the law of the country should not be impeded or interfered with, without justification .”(emphasis mine)
21. The provisions of Section 26 of the IPOA Act and Section 30 of the KNHRC Act cannot have been intended to bar investigations into a matter simply because it is before a court. The intention of the legislature must have been to bar investigations into a matter that is before court if such investigations may compromise the justice of the case.
22. It must be remembered that habeas corpus proceedings are proceedings sui generis in that there is no party who is likely to be prejudiced if investigations are carried on by government agencies even as the proceedings continue. The purpose of the intended investigations would in this courts view be to assist in uncovering the whereabouts of the subjects of the habeas corpus.
23. The investigations can only be of benefit to securing the liberty of the individuals as opposed to compromising the integrity of the instant proceedings.
24. In Inter-American Court of Human Rights Case of Velásquez-Rodríguez v. Honduras Judgment of July 29, 1988 (Merits) the court inquiring into the matter of enforced disappearances in Honduras observed;-
“Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon.
Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin American in the last few years. 150. The phenomenon of disappearances is a complex form of human rights violation that must be understood and confronted in an integral fashion.”
25. In a case where a citizen is alleged to have been abducted in the manner that the subjects herein are alleged to have disappeared, the country must confront such incidents in an integral fashion where all investigative agencies created under the Constitution and by statute are summoned to action with a view to nipping the emerging trend in its bud to avert a situation where such disappearances and kidnappings become the norm threatening the right to life and liberty of citizens. The court must therefore in interpreting a statute that impacts on investigations into such incidents adopt a liberal approach to achieve goals of justice.
26. A restrictive interpretation of a statutory provisions would most likely lead the court to taking a position that limits the realization of the right to liberty of the subject of habeas corpus.
27. In Mboya v Attorney General; National Assembly & another (Interested Parties) (Petition 472 of 2017) [2018] KEHC 6933 (KLR) (Constitutional and Human Rights) (21 May 2018) (Judgment) held;-
“In searching for the purpose of the act, it is legitimate to seek to identify the mischief sought to be remedied by the legislation. In part, that is why it is helpful, where appropriate, to pay due attention to the social and historical background of the legislation. We are obliged to understand the provisions within the context of the grid, if any, of related provisions and of the Constitution as a whole, including the underlying values of the Constitution that must be promoted and protected. Although the text is often the starting point of any statutory construction, the meaning it bears must pay due regard to context. This is so even when the ordinary meaning of the provision to be construed is clear and unambiguous.
In construing the impugned provisions, we are obliged not only to avoid an interpretation that clashes with the Constitutional values, purposes and principles but also to seek a meaning of the provisions that promotes constitutional purposes, values, principles, and which advances rule of law, human rights and fundamental freedoms in the Bill of Rights. We are obliged to pursue an interpretation that permits development of the law and contributes to good governance. We are obliged to be guided by the provisions of Article 159 (e) which requires us to promote and protect the purposes and principles of the Constitution.’’
28. This court cannot therefore ignore the history of the country before the enactment of the Independent Policing Oversight Authority Act as well as the Kenya National Human Rights Commission Act. The two institutions were born out of a realization that there was need to subject the National Police Service to civilian oversight in order to promote accountability and the need to create an institution in the name and style of Kenya National Human Rights Commission with a specific mandate to deal with Human Rights issues whenever they arise.
29. The Commission on Human Rights under Article 249 1 (c) is enjoined to promote constitutionalism and in doing so the Commission is clothed with investigative powers to inquire into allegations of Human Rights violations in the country so as to promote constitutionalism and the observance of the Rule of Law. By enacting Section 30 of Kenya National Human Rights Commission Act the intention of the Parliament must have been to limit the investigative powers of the commission into any matter if those investigations were geared towards undermining proceedings before a court or tribunal. It is the view of this court that where investigations are geared towards promoting the interest of the administration of justice and that those investigations do not pose a threat to the proceedings before the court the Commission shall remain at liberty to continue with such investigations and so is the IPOA. In my view, this is the interpretation that accords with the duty of the court under Articles 10,20, 23, 165 & 259 of the Constitution.
30. The Independent Policing Oversight Authority Act Cap. 86 in its long title reads;-
“ An Act of Parliament to provide for civilian oversight of the work of the Police; to establish the Independent Policing Oversight Authority; to provide for its functions and powers and for connected purposes’’. The intention of parliament was to provide for civilian oversight especially where allegations are made against the police touching on the discharge of their mandate.
31. In these proceedings the applicants alleged that the subjects were arrested and are detained by the police. The police on the other hand have denied having arrested the subjects and that they have maintained throughout the proceedings that the subjects are not in their custody. The allegation of possible police involvement in the arrest and illegal detention is a matter that would automatically trigger the mandate of the Independent Policing Oversight Authority. Under Section 4 the Act provides:
Independence of the Authority.
(1) In the performance of its functions the Authority shall subject to section 34 , not be subject to any person, office or authority.
(2) The Authority shall observe the principle of impartiality and rules of natural justice in the exercise of its powers and the performance of its functions .
(3) Every Government officer or institution shall accord the Authority such assistance and protection as may be necessary to ensure its independence, impartiality, dignity and effectiveness.
(4) No person or body may interfere with the decision making, functioning or operations of the Authority.
(5) Parliament shall ensure that the Authority is adequately funded for it to effectively and efficiently perform all of its functions. ( emphasis added).
32. A reading of this Section leaves no doubt that the IPOA should remain independent in exercising its mandate. If one was to interpret Section 26 of the Act as barring the authority from conducting investigations into a matter simply because there are active proceedings in court touching on the subject matter, such a position would invite mischief makers into filing proceedings in court whenever an issue that would attract the intervention of IPOA so as to ward them off. To my mind adopting such an interpretation would be restrictive of the agency’s exercise of its mandate to the detriment of the rights of individuals affected by police actions.
33. In my view the restriction on investigations would only make sense where the proceedings being undertaken in court are geared towards determining the guilt or innocence of an accused person so as to avoid compromising their right to a fair trial.
34. I hold the view that given the nature of habeas corpus proceedings it would be against the spirit of the IPOA Act to stop the agency from undertaking investigations that may as well assist in tracing the subjects of the habeas corpus application and may as well absolve the police from the accusation that they are indeed the persons holding the subjects.
35. For the avoidance of doubt this court declines to travel the route of striking down the two provisions on grounds of unconstitutionality since in my view drawing from the mischief rule one can quickly discern that the Sections 26 of the IPOA Act and Section 30 of the KNHRC Act were meant to protect legal proceedings from investigations that may prejudice the interests of justice in the course of proceedings.
36. The signing by Kenya of the International Convention for the Protection of All Persons from Enforced Disappearance ADOPTED 20 December 2006 BY General Assembly of the United Nations in its resolution 61/177 , even though as a country Kenya is yet to ratify the Convention, is an indicator that Kenya appreciates the magnitude of the problem of enforced disappearances as global phenomena. The Convention provides under;-
Article 1
1. No one shall be subjected to enforced disappearance.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
Article 2
For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
Article 3
Each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice .
37. The investigation of such incidents is thus a responsibility of the state through all its investigative agencies.
38. The Supreme Court of Nepal; Division Bench, Hon. Justice Mr. Khilaraj Regmi, Hon Justice Mr. Kalyan Shrestha in Writ no 3575, 100, 104, 323, 500, 45, 41, 155, 162, 164, 167, 97, 110, 111, 142, 211, 250, 223, 262, 378, 418, 485, 617, 632, 635, 54(0002) 0004, 2588/0038 dealing with a similar question of disappearances had this to say;- “Given that international norms require that the investigation of a disappeared person's status be pursued until such status is established, a commission of inquiry, as constituted under the Commission of Inquiry Act, cannot meet this standard. By the very nature of the act of disappearance, it is necessary that the families and relatives of disappeared persons are provided with the findings of the investigations and that the report is made public. The Commission of Inquiry Act does not ensure this.” (emphasis mine).
39. The fact that the police are investigating the matter should not exclude other investigative agencies from continuing with their investigation since each agency would be playing a complementary role in trying to trace, find and locate the subjects with a view to informing this court of their status.
40. Thus, not withstanding the provisions of Section 26 of the IPOA Act and Section 30 of the Kenya National Human Rights Commission Act Cap.71 the two agencies in the spirit of transparency and promotion of accountability, be and are hereby ordered to continue with their independent investigations into the circumstances leading to the arrest and disappearance of the subjects.
41. The Interested parties shall be under duty to share with this court the result of their findings.
42. It is so ordered.