[1] The Petition dated 31 st May 2021 was filed by Sauda Omari Mwachitseko (the 1 st petitioner) and Muslims for Human Rights (MUHURI), on behalf of Bakari Mwanyota Mbwana (hereinafter, “the Subject”). The 1 st petitioner described herself as a female adult citizen of Kenya and a resident of Consolata in Likoni area of the County of Mombasa.
[2] The petitioners stated that the Subject is an adult male citizen of Kenya and was also a resident of Likoni until the night of 22 nd /23 rd February 2021 when a squad of five police officers in jungle green uniforms arrested him. The petitioners averred that the Police neither disclosed the reasons for the arrest of the Subject nor produced any warrants of arrest to justify the apprehension of the Subject. They further stated that the police officers ransacked the house and seized the mobile phones belonging to the Subject and the 1 st petitioner before leaving with the Subject.
[3] The 1 st petitioner promptly reported the incident at Inuka Police Station as well as to the 2 nd respondent. The 2 nd respondent thereafter publicized the arrest and publicly demanded the release of the Subject or his arraignment in court if he was suspected of having committed any crime. They further stated that, since then, the Subject had not been seen, heard from or heard of. Hence, the petitioners were apprehensive that the Police were unlawfully detaining the Subject incommunicado indefinitely and in an unacknowledged detention without trial and might be subjecting him to torture, cruel and/or inhuman and degrading treatment in violation of his fundamental rights and freedoms guaranteed by the Constitution.
[4] The petitioners were also apprehensive that the Police might ultimately subject the Subject to forced disappearance and/or extra judicial execution and thereby unlawfully, illegally and criminally defeat all his fundamental rights, freedoms and guarantees/protections under the Constitution, laws of Kenya and international human rights and humanitarian law. Therefore, the petitioners prayed for the following reliefs:
[a] An order of habeas corpus directing and compelling the respondents to produce the Subject, Bakari Mwanyota Mbwana , before this Court or any other court of law in the Republic of Kenya for the Subject to be dealt with in accordance with the law and/or release the subject forthwith.
[b] A declaration that the storming and breaking into the home of the 1 st petitioner and the Subject by police officers on the 23 rd February 2021, conducting a search thereat without a search warrant is unlawful and a blatant violation of the 1 st petitioner’s right to privacy guaranteed by Article 31(a) and (b) of the Constitution.
[c] A declaration that the seizure and continued impoundment of the mobile phones of the 1 st petitioner, Make Samsung, and that of the Subject, Make Samsung Grand Prime, without any lawful or justifiable reason is unlawful, illegal and unconstitutional deprivation of her fundamental right to property guaranteed by Article 40(1) and (3) of the Constitution.
[d] A declaration that the arrest/abduction of the Subject, Bakari Mwanyota Mbwana, by police officers for undisclosed reasons or for any disclosed suspected offence/s and without warrants issued by a court of law amounts to arbitrary deprivation of personal freedom and liberty in violation of Article 29(a) of the Constitution.
[e] A declaration that the holding of the Subject, Bakari Mwanyota Mbwana , by police officers for more than 24 hours since his arrest/abduction on the night of 22 nd /23 rd February 2021 and placing him incommunicado and in an unacknowledged detention without trial in undisclosed location amounts to subjecting the Subject to detention without trial, enforced disappearance, denial and negation of his fundamental rights to life, inherent human dignity, equal protection and equal benefit of the law, personal liberty and freedom from detention without trial, torture, inhuman, cruel and/or degrading treatment or punishment and servitude contrary to Articles 26(1),(3), 27(1),(2), 28, 29(a),(b),(d),(f), 30(1), 45(1)(a),(c),(f), and 51(1) of the Constitution and Article 1 of the International Convention for the Protection of All Persons from Enforced Disappearance.
[f] A declaration that under Article 50(1) of the Constitution the 1 st petitioner is entitled to an effective remedy against the respondents for the arrest/abduction and indefinite detention without trial and enforced disappearance of the Subject, Bakari Mwanyota Mbwana.
[g] A declaration that under Article 35 of the Constitution the 1 st petitioner is entitled to information from the respondents of the investigations carried out by the respondents regarding the arrest, detention/abduction of the Subject Bakari Mwanyota Mbwana.
[h] An order compelling the respondents to furnish this Court and the 1 st petitioner with information and/or report of the investigations carried out by the 1 st respondent regarding the arrest, detention/abduction of the Subject Bakari Mwanyota Mbwana.
[i] An award of general, exemplary, vindicatory and/or punitive damages for the violations in Prayers [b] to [e] above as may be assessed by this Court.
[j] An order that the costs of the Petition be borne by the respondents jointly and/or severally.
[k] Interest on award/s of damages at court rates.
[5] The Petition was supported by the affidavits of the 1 st petitioner and Bakari Hassan Mwamtowa . Thereafter, witness statements were recorded from the two as well as an employee of the 2 nd petitioner, namely, Ernest Cornel.
[6] The respondents opposed the Petition and relied on the Affidavit and witness statement filed by No. 75939 Corporal Levin Nyamai who was then attached to the Directorate of Criminal Investigations, Likoni Police Station.
[7] The Petition was canvassed by way of viva voce evidence, pursuant to the directions given on the 24 th June 2021. Accordingly, the petitioner testified on her own behalf as PW1 and called two witnesses, namely Ernest Cornel (PW2) and Bakari Hassan Mwamtowa (PW3). They adopted the contents of their respective affidavits and witness statements filed herein.
[8] The respondent opposed the Petition and relied on the evidence of Corporal Levin Nyamai (DW1). He confirmed that, on 23 rd February 2021 a report was made at Inuka Police Station by Sauda Mwachitseko (the 1 st petitioner) to the effect that her husband, Abubakar Mbwana Mwanyota, had been taken away by 6 unknown men from their house in the early hours of 23 rd February 2021. Cpl Nyamai further stated that a signal was sent throughout the country to find out if the Subject was in the custody of the police but no response was received. He therefore averred that the Subject was not in police custody and was therefore not the subject of any police investigation in the country. He produced an extract of the Occurrence Book as well as a copy of the signal under reference.
[9] The parties thereafter filed their respective closing submissions. The petitioner filed submissions dated 27 th October 2023 and proposed the following issues for determination:
[a] Whether the Subject was arrested and/or abducted by police officers;
[b] Whether the Subject is detained and/or in the custody of the Police;
[c] Whether the 1 st respondent has discharged its constitutional obligation to investigate the arrest and/or abduction of the Subject; and
[d] Whether the petitioners are entitled to the orders sought.
[10] Counsel for the respondents, Ms. Kiti , filed written submissions dated 9 th November 2023. The respondents reiterated their assertions as per the Affidavit and oral evidence of Corporal Levin Nyamai (DW1). They denied that the Subject was arrested by the Police as alleged by the petitioner and posited that the Subject may have been abducted by thugs or terrorists who may have introduced themselves as police officers to divert attention. They further urged the Court to take judicial notice that a number of youth and individuals in the society are joining terrorist and/or militia groups by stage-managing their own disappearance without the knowledge of their kin.
[11] The respondents addressed the Court on the role of the National Police Service as provided for in the National Police Service Act and the Police Service Standing Orders and the rules attendant to the discharge of those functions; including the requirement that a police officer on duty be in uniform and must have a nametag and an identifiable service number clearly displayed on their outermost garment. It was therefore the submission of the respondents that the Police had nothing to do with the disappearance of the Subject. They urged for the dismissal of the Petition.
[12] From the foregoing, there is no dispute that the house of the 1 st petitioner was raided by persons who introduced themselves as police officers. The incident took place on the night of 22 nd /23 rd February 2021. In her own words, the 1 st petitioner testified that the men were dressed in jungle fatigues and that they forced their way into their house by breaking down the door. They commanded her to introduce the occupants of the house, which she did. They then roughed up the Subject, pinned him to the ground and handcuffed him. The men proceeded to ransack the house before seizing their mobile phones. They then left with the Subject who has not been seen or heard from since.
[13] While the petitioners contend that the Subject was arrested by Police officers from Nairobi, the respondents vehemently denied this and contended that the Subject may have been abducted by thugs or terrorists. In the premises, the issues for determination are:
[a] Whether the Subject was arrested and/or abducted by police officers;
[b] Whether the Subject is detained and/or in the custody of the Police;
[c] Whether the 1 st respondent has discharged its constitutional obligation to investigate the arrest and/or abduction of the Subject; and
[d] Whether the petitioners are entitled to the orders sought.
[14] Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya is explicit that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[15] Likewise, Section 108 of the Evidence Act provides that:
The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
[16] In this regard, the Court of Appeal in the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, held: -
“…As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act...”
[17] Similarly, in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) the Supreme Court held:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[18] With the foregoing in mind, I now proceed to determine each of the issues set out herein above, taking into consideration the following excerpt from the decision of the Supreme Court of Canada in R v Morin [1992] 1 SCR 771, which was cited with approval by the Court of Appeal in Julius Kamau Mbugua v Republic [2010] eKLR:
“The general approach in a determination as to whether the right has been denied is not by the application of mathematical or administrative formula but rather by a judicial determination balancing the interest which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay.”
On whether the Subject was arrested and/or abducted by police officers:
[19] In this regard, the 1 st petitioner testified as to what she saw and heard; and that the people who stormed their house introduced themselves as police officers and said the Subject was required in Nairobi for investigations. The men, who were dressed in jungle uniform, handcuffed the Subject before taking him away. The incident was observed by PW3, a neighbor to the 1 st petitioner who also mentioned that there were more than 20 other heavily armed police officers patrolling the area around the 1 st petitioner’s home at the time. He mentioned that there were streetlights to provide illumination.
[20] The Court takes judicial notice that the incident took place at a time when a night curfew was in place on account of the global corona virus pandemic. It was therefore highly unlikely that thugs would have freely moved around at 1.00 a.m. in such a large group without being detected by the police. I therefore invoke Section 119 of the Evidence Act to conclude that the evidence presented by the 1 st petitioner and her neighbour is credible. The provision states:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
[21] Indeed, in Kenya National Commission on Human Rights & another v Attorney General & 3 others [2014] eKLR it was held:
“26. The proceedings before me are proceedings under Articles 22 and 23 of the Constitution for enforcement of fundamental rights and freedoms and the Court’s duty is to weigh the evidence presented before it and determine whether there was or there was not a violation of the Constitution.
27. Circumstantial evidence, indicia and presumptions in such proceedings may therefore be considered, so long as they lead to conclusions consistent with the facts. Circumstantial or presumptive evidence, in my view, is important where the State has acted to suppress all evidence or where the investigator and protector is in fact the alleged perpetrator of the violation. This is the case before me.”
[22] It is not surprising that the police did not introduce themselves to the 1 st petitioner and members of her household, and therefore the reference by the respondents to the provisions of the 4 th Schedule, 6 th Schedule and Chapter 43 of the Police Service Standing Orders are to no avail. In the case of Law Society of Kenya & 3 others v Attorney General & 3 others [2016] eKLR, (Willie Kimani case) the Court noted that there was a scheme by the police to conceal the truth as to the whereabouts of the Subjects who were later found dead. The Court held:
“In the present application, it was clear that Willie Kimani was killed in the course of performing his duties as an advocate. On the particular day that he was kidnapped and later unlawfully detained before subsequently being killed, he had attended the Mavoko Law Courts as the advocate of Josephat Mwendwa who had been charged with various traffic offences. The 4th Petitioner was a taxi driver who drove Willie Kimani to court. It is not beyond realm of speculation that Willie Kimani, his client and the taxi driver met their deaths because of the complaint that had earlier been lodged by Josephat Mwendwa with IPOA concerning the gunshot injuries that he had sustained in the hands of a police officer. It cannot also be ruled out that Willie Kimani was killed because he was identified with his client’s case. There was distinct lack of enthusiasm by the police to investigate the disappearance of the deceased petitioners when the incident was reported to them. The police belatedly took action when the Law Society of Kenya and Civil Society took up the deceased petitioners’ cause. Unfortunately for the deceased petitioners, by the time action was taken it was too late. They had already been killed and their bodies dumped in Ol Donyo Sabuk River. This court therefore holds that Willie Kimani Advocate was killed while performing his duties as an advocate. Willie Kimani should be recognized as a champion of Human Rights and the Rule of Law who was killed in line of duty. Another issue that was brought to sharp focus by the disappearance, illegal detention and subsequent killing of the deceased petitioners is in regard to whether the reforms put in place within the Police Service since the promulgation of the 2010 Constitution has had any significant effect. There was recognition that over the years, the then police force had acquired a reputation for lack of accountability, distrust by the citizenry, corruption and lack for respect for human rights in the course of performance of their duties as a Police Force. Of particular note, were accusations that some elements of the Police Force were complicit in extra-judicial executions and enforced disappearances. The Police Force was accused of lethargy in investigation of cases in respect of incidences of abuses of human rights.”
[23] It is significant that the signal relied on by the respondents was not issued on the 23 rd February 2021 when the 1 st petitioner made her report but much later on 22 nd July 2021, long after this Petition had been filed. It is therefore my finding that the Subject was indeed arrested and/or abducted by police officers. It is also significant that while the subject was reported missing under the name of Bakari Mwanyota Mbwana , the OB extract and the sigal dated 22 nd July 2021 captured the name as Abukar Mbwana . Cpl. Nyamai’s evidence was also contradictory. He referred to the missing person as Abubakar Mbwana Mwanyota.
Whether the Subject is detained and/or in the custody of the Police;
[24] The petitioners conceded that, as at the time DW1 concluded his evidence, the specific place of detention of the suspect was unknown. There was no evidence availed of the Subject having been booked into custody in any police station or facility of any security agency. The petitioners were even doubtful that the Subject was still alive. Accordingly, the Court was urged by counsel for the petitioners to find that this is a classic case of enforced disappearance. There being no evidence to the contrary, I find and hold that Bakari Mwanyota Mbwana is the subject of enforced disappearance.
Whether the 1 st respondent has discharged its constitutional obligation to investigate the arrest and/or abduction of the Subject;
[25] Whether or not the Subject was a victim of thugs or terrorists, it was the duty of the State to guarantee his security. Upon a report being made by the 1 st petitioner that the subject had been forcefully taken away from his home and family, the Police were under duty to investigate the circumstances surrounding his disappearance. I note that in Law Society of Kenya & 2 others v Attorney General & 2 others, the Court found that the International Convention for the Protection of All Persons from Enforced Disappearance, 2007, though not ratified by Kenya, was applicable to cases of this nature, given the global concern over the increase in incidences of disappearance of persons. It would seem that the Convention falls under the general rules of international law and therefore applicable by dint of Article 2(5) of the Constitution.
[26] That notwithstanding, the Constitution is explicit as to the right to equal protection and benefit of the law, right to security and freedom from discrimination. Article 27 thereof states:
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
[27] Hence, in Republic v Commissioner of Police, Mohamed Ali & 3 other, Ex Parte Phylis Temwai Kipteyo [2010] eKLR, the Court held:
“All the same, the life of the victim and the interests of his family are protected by the constitution and the statutes. The State through the Respondents herein are responsible for security of citizens in this country. It is the duty of the State to inquire into any crime or suspected crime affecting any of its subjects. It is the duty of the State to investigate the disappearance of the victim herein who was its subject and its employee. The family of the victim is entitled to know where the victim is and his current status in regard to his life, health and security. The right to life is a fundamental one which this court has a duty to safeguard.”
[28] In this instance, in addition to the late dispatch of the signal about the disappearance of the Subject, it was the evidence of the 1 st petitioner that no police officer had visited her home by the time she was giving her testimony. It is also noted that no action was taken to follow up or investigate the loss of the two mobile phones belonging to the 1 st petitioner and the Subject. The record further shows that although an order was made by the Court for the loss of the two mobile phones to be investigated, no action was taken until 20 th September 2022. The lethargy exhibited by the Police in this case only confirms that they were complicit in the arrest and disappearance of the Subject.
[29] I agree entirely with the expressions of the Court in Law Society of Kenya & 2 others v Attorney General (supra) that:
“47. It is the height of impunity if Police Officers who are constitutionally charged with the duty to maintain law and order and to enforce the law for the protection of life, liberty and property and observation of human rights and freedoms were to arrest persons for whatever transgressions of the law only for such arrested persons to subsequently disappear and the Police to deny ever arresting such persons, cover up their actions and get away with it. It is cheating justice.
48. Not only should such officers be held personally liable in a criminal process for their offences against the person but the State must be held vicariously liable for the unlawful actions of its employees.”
[30] It is therefore my finding that 1 st respondent was under obligation to diligently investigate the missing person report filed by the 1 st petitioner at Inuka Police Station but utterly failed to do so.
[31] An aspect of this Petition was that under Article 35 of the Constitution the 1 st petitioner is entitled to information from the respondents of the investigations carried out by the respondents regarding the arrest, detention/abduction of the Subject Bakari Mwanyota Mbwana. The right of access to information is provided for in Article 35 of the Constitution, which states:
(1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) The State shall publish and publicise any important information affecting the nation.
[32] Under Section 4 of the Access to Information Act, every person has the right to access information unless such a right has been limited under Section 6 of the Act. Section 4 provides:
(1) Subject to this Act and any other written law, every citizen has the right of access to information held by—
(a)the State; and
(b)another person and where that information is required for the exercise or protection of any right or fundamental freedom.
(2) Subject to this Act, every citizen's right to access information is not affected by—
(a) any reason the person gives for seeking access; or
(b) the public entity's belief as to what are the person's reasons for seeking access.
(3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.
(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.
(5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.
[33] The Act, under Section 5, is explicit that a public entity should facilitate access to information held by it provided that the information is sought in accordance with the procedures set out in Section 8 , which requires that the request for information be in writing with sufficient details and particulars to enable the public officer to ascertain what information is being sought. The information should also be provided without any delay.
[34] Accordingly, in Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission & another [2016] eKLR, it was held:
“270. Article 35(1)(a) of the Constitution does not seem to impose any conditions precedent to the disclosure of information by the state. I therefore agree with the position encapsulated in The Public’s Right to Know: Principles on Freedom of Information Legislation – Article 19 at page 2 that the principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances and that public bodies have an obligation to disclose information and every member of the public has corresponding right to receive information. Further the exercise of this right should not require individuals to demonstrate a specific interest in the information. Where therefore a public authority seeks to deny access to information, it should bear the onus of justifying the refusal at each stage of the proceedings. I also endorse the definition of public bodies to include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quasi-non-governmental organisations, judicial bodies, and private bodies which carry out public functions…”
[35] Likewise, in Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 Others [2013] eKLR, it was held:
34.The second consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus, the State has a duty not only to proactively publish information in the public interest-this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the State to ‘publish and publicise any important information affecting the nation’ , but also to provide open access to such specific information as people may require from the State.
35. A third consideration is the nature and form of information that should be availed by the State, and the extent to which information should be disclosed…However, there are certain international standards which offer a guide on the nature of the information to be provided, and the extent to which disclosure should go…”
[36] In the same vein, in Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (Civ) (16 June 2023) (Judgment), the Supreme Court stated:
“…whereas information held by the State ought to be freely shared except in exceptional circumstances, such information should flow from the custodian of such information to the recipients in a manner recognised under the law…”
[37] In the present case, the petitioners have not presented any evidence to show that they requested for any information in writing from any of the respondents or that access was declined. Indeed, Section 48 of the National Police Service Act provides as follows with regard to access to information:
Subject to Article 244 of the Constitution and any other law enacted pursuant to Article 35 of the Constitution, a limitation of a right shall be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and shall be limited only for purposes of ensuring-
(a) the protection of classified information;
(b) the maintenance and preservation of national security;
(b) the security and safety of officers in the Service;
(c) the independence and integrity of the Service; and
(e) the enjoyment of the rights and fundamental freedoms by any individual, does not prejudice the rights and fundamental freedoms of others.
[38] In the premises, I am not convinced that the Petitioner has proved any violation of its right of access to inf
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[2] The petitioners stated that the Subject is an adult male citizen of Kenya and was also a resident of Likoni until the night of 22 nd /23 rd February 2021 when a squad of five police officers in jungle green uniforms arrested him. The petitioners averred that the Police neither disclosed the reasons for the arrest of the Subject nor produced any warrants of arrest to justify the apprehension of the Subject. They further stated that the police officers ransacked the house and seized the mobile phones belonging to the Subject and the 1 st petitioner before leaving with the Subject.
[3] The 1 st petitioner promptly reported the incident at Inuka Police Station as well as to the 2 nd respondent. The 2 nd respondent thereafter publicized the arrest and publicly demanded the release of the Subject or his arraignment in court if he was suspected of having committed any crime. They further stated that, since then, the Subject had not been seen, heard from or heard of. Hence, the petitioners were apprehensive that the Police were unlawfully detaining the Subject incommunicado indefinitely and in an unacknowledged detention without trial and might be subjecting him to torture, cruel and/or inhuman and degrading treatment in violation of his fundamental rights and freedoms guaranteed by the Constitution.
[4] The petitioners were also apprehensive that the Police might ultimately subject the Subject to forced disappearance and/or extra judicial execution and thereby unlawfully, illegally and criminally defeat all his fundamental rights, freedoms and guarantees/protections under the Constitution, laws of Kenya and international human rights and humanitarian law. Therefore, the petitioners prayed for the following reliefs:
[a] An order of habeas corpus directing and compelling the respondents to produce the Subject, Bakari Mwanyota Mbwana , before this Court or any other court of law in the Republic of Kenya for the Subject to be dealt with in accordance with the law and/or release the subject forthwith.
[b] A declaration that the storming and breaking into the home of the 1 st petitioner and the Subject by police officers on the 23 rd February 2021, conducting a search thereat without a search warrant is unlawful and a blatant violation of the 1 st petitioner’s right to privacy guaranteed by Article 31(a) and (b) of the Constitution.
[c] A declaration that the seizure and continued impoundment of the mobile phones of the 1 st petitioner, Make Samsung, and that of the Subject, Make Samsung Grand Prime, without any lawful or justifiable reason is unlawful, illegal and unconstitutional deprivation of her fundamental right to property guaranteed by Article 40(1) and (3) of the Constitution.
[d] A declaration that the arrest/abduction of the Subject, Bakari Mwanyota Mbwana, by police officers for undisclosed reasons or for any disclosed suspected offence/s and without warrants issued by a court of law amounts to arbitrary deprivation of personal freedom and liberty in violation of Article 29(a) of the Constitution.
[e] A declaration that the holding of the Subject, Bakari Mwanyota Mbwana , by police officers for more than 24 hours since his arrest/abduction on the night of 22 nd /23 rd February 2021 and placing him incommunicado and in an unacknowledged detention without trial in undisclosed location amounts to subjecting the Subject to detention without trial, enforced disappearance, denial and negation of his fundamental rights to life, inherent human dignity, equal protection and equal benefit of the law, personal liberty and freedom from detention without trial, torture, inhuman, cruel and/or degrading treatment or punishment and servitude contrary to Articles 26(1),(3), 27(1),(2), 28, 29(a),(b),(d),(f), 30(1), 45(1)(a),(c),(f), and 51(1) of the Constitution and Article 1 of the International Convention for the Protection of All Persons from Enforced Disappearance.
[f] A declaration that under Article 50(1) of the Constitution the 1 st petitioner is entitled to an effective remedy against the respondents for the arrest/abduction and indefinite detention without trial and enforced disappearance of the Subject, Bakari Mwanyota Mbwana.
[g] A declaration that under Article 35 of the Constitution the 1 st petitioner is entitled to information from the respondents of the investigations carried out by the respondents regarding the arrest, detention/abduction of the Subject Bakari Mwanyota Mbwana.
[h] An order compelling the respondents to furnish this Court and the 1 st petitioner with information and/or report of the investigations carried out by the 1 st respondent regarding the arrest, detention/abduction of the Subject Bakari Mwanyota Mbwana.
[i] An award of general, exemplary, vindicatory and/or punitive damages for the violations in Prayers [b] to [e] above as may be assessed by this Court.
[j] An order that the costs of the Petition be borne by the respondents jointly and/or severally.
[k] Interest on award/s of damages at court rates.
[5] The Petition was supported by the affidavits of the 1 st petitioner and Bakari Hassan Mwamtowa . Thereafter, witness statements were recorded from the two as well as an employee of the 2 nd petitioner, namely, Ernest Cornel.
[6] The respondents opposed the Petition and relied on the Affidavit and witness statement filed by No. 75939 Corporal Levin Nyamai who was then attached to the Directorate of Criminal Investigations, Likoni Police Station.
[7] The Petition was canvassed by way of viva voce evidence, pursuant to the directions given on the 24 th June 2021. Accordingly, the petitioner testified on her own behalf as PW1 and called two witnesses, namely Ernest Cornel (PW2) and Bakari Hassan Mwamtowa (PW3). They adopted the contents of their respective affidavits and witness statements filed herein.
[8] The respondent opposed the Petition and relied on the evidence of Corporal Levin Nyamai (DW1). He confirmed that, on 23 rd February 2021 a report was made at Inuka Police Station by Sauda Mwachitseko (the 1 st petitioner) to the effect that her husband, Abubakar Mbwana Mwanyota, had been taken away by 6 unknown men from their house in the early hours of 23 rd February 2021. Cpl Nyamai further stated that a signal was sent throughout the country to find out if the Subject was in the custody of the police but no response was received. He therefore averred that the Subject was not in police custody and was therefore not the subject of any police investigation in the country. He produced an extract of the Occurrence Book as well as a copy of the signal under reference.
[9] The parties thereafter filed their respective closing submissions. The petitioner filed submissions dated 27 th October 2023 and proposed the following issues for determination:
[a] Whether the Subject was arrested and/or abducted by police officers;
[b] Whether the Subject is detained and/or in the custody of the Police;
[c] Whether the 1 st respondent has discharged its constitutional obligation to investigate the arrest and/or abduction of the Subject; and
[d] Whether the petitioners are entitled to the orders sought.
[10] Counsel for the respondents, Ms. Kiti , filed written submissions dated 9 th November 2023. The respondents reiterated their assertions as per the Affidavit and oral evidence of Corporal Levin Nyamai (DW1). They denied that the Subject was arrested by the Police as alleged by the petitioner and posited that the Subject may have been abducted by thugs or terrorists who may have introduced themselves as police officers to divert attention. They further urged the Court to take judicial notice that a number of youth and individuals in the society are joining terrorist and/or militia groups by stage-managing their own disappearance without the knowledge of their kin.
[11] The respondents addressed the Court on the role of the National Police Service as provided for in the National Police Service Act and the Police Service Standing Orders and the rules attendant to the discharge of those functions; including the requirement that a police officer on duty be in uniform and must have a nametag and an identifiable service number clearly displayed on their outermost garment. It was therefore the submission of the respondents that the Police had nothing to do with the disappearance of the Subject. They urged for the dismissal of the Petition.
[12] From the foregoing, there is no dispute that the house of the 1 st petitioner was raided by persons who introduced themselves as police officers. The incident took place on the night of 22 nd /23 rd February 2021. In her own words, the 1 st petitioner testified that the men were dressed in jungle fatigues and that they forced their way into their house by breaking down the door. They commanded her to introduce the occupants of the house, which she did. They then roughed up the Subject, pinned him to the ground and handcuffed him. The men proceeded to ransack the house before seizing their mobile phones. They then left with the Subject who has not been seen or heard from since.
[13] While the petitioners contend that the Subject was arrested by Police officers from Nairobi, the respondents vehemently denied this and contended that the Subject may have been abducted by thugs or terrorists. In the premises, the issues for determination are:
[a] Whether the Subject was arrested and/or abducted by police officers;
[b] Whether the Subject is detained and/or in the custody of the Police;
[c] Whether the 1 st respondent has discharged its constitutional obligation to investigate the arrest and/or abduction of the Subject; and
[d] Whether the petitioners are entitled to the orders sought.
[14] Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya is explicit that:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
[15] Likewise, Section 108 of the Evidence Act provides that:
The onus of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
[16] In this regard, the Court of Appeal in the case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, held: -
“…As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act...”
[17] Similarly, in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) the Supreme Court held:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[18] With the foregoing in mind, I now proceed to determine each of the issues set out herein above, taking into consideration the following excerpt from the decision of the Supreme Court of Canada in R v Morin [1992] 1 SCR 771, which was cited with approval by the Court of Appeal in Julius Kamau Mbugua v Republic [2010] eKLR:
“The general approach in a determination as to whether the right has been denied is not by the application of mathematical or administrative formula but rather by a judicial determination balancing the interest which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay.”
On whether the Subject was arrested and/or abducted by police officers:
[19] In this regard, the 1 st petitioner testified as to what she saw and heard; and that the people who stormed their house introduced themselves as police officers and said the Subject was required in Nairobi for investigations. The men, who were dressed in jungle uniform, handcuffed the Subject before taking him away. The incident was observed by PW3, a neighbor to the 1 st petitioner who also mentioned that there were more than 20 other heavily armed police officers patrolling the area around the 1 st petitioner’s home at the time. He mentioned that there were streetlights to provide illumination.
[20] The Court takes judicial notice that the incident took place at a time when a night curfew was in place on account of the global corona virus pandemic. It was therefore highly unlikely that thugs would have freely moved around at 1.00 a.m. in such a large group without being detected by the police. I therefore invoke Section 119 of the Evidence Act to conclude that the evidence presented by the 1 st petitioner and her neighbour is credible. The provision states:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
[21] Indeed, in Kenya National Commission on Human Rights & another v Attorney General & 3 others [2014] eKLR it was held:
“26. The proceedings before me are proceedings under Articles 22 and 23 of the Constitution for enforcement of fundamental rights and freedoms and the Court’s duty is to weigh the evidence presented before it and determine whether there was or there was not a violation of the Constitution.
27. Circumstantial evidence, indicia and presumptions in such proceedings may therefore be considered, so long as they lead to conclusions consistent with the facts. Circumstantial or presumptive evidence, in my view, is important where the State has acted to suppress all evidence or where the investigator and protector is in fact the alleged perpetrator of the violation. This is the case before me.”
[22] It is not surprising that the police did not introduce themselves to the 1 st petitioner and members of her household, and therefore the reference by the respondents to the provisions of the 4 th Schedule, 6 th Schedule and Chapter 43 of the Police Service Standing Orders are to no avail. In the case of Law Society of Kenya & 3 others v Attorney General & 3 others [2016] eKLR, (Willie Kimani case) the Court noted that there was a scheme by the police to conceal the truth as to the whereabouts of the Subjects who were later found dead. The Court held:
“In the present application, it was clear that Willie Kimani was killed in the course of performing his duties as an advocate. On the particular day that he was kidnapped and later unlawfully detained before subsequently being killed, he had attended the Mavoko Law Courts as the advocate of Josephat Mwendwa who had been charged with various traffic offences. The 4th Petitioner was a taxi driver who drove Willie Kimani to court. It is not beyond realm of speculation that Willie Kimani, his client and the taxi driver met their deaths because of the complaint that had earlier been lodged by Josephat Mwendwa with IPOA concerning the gunshot injuries that he had sustained in the hands of a police officer. It cannot also be ruled out that Willie Kimani was killed because he was identified with his client’s case. There was distinct lack of enthusiasm by the police to investigate the disappearance of the deceased petitioners when the incident was reported to them. The police belatedly took action when the Law Society of Kenya and Civil Society took up the deceased petitioners’ cause. Unfortunately for the deceased petitioners, by the time action was taken it was too late. They had already been killed and their bodies dumped in Ol Donyo Sabuk River. This court therefore holds that Willie Kimani Advocate was killed while performing his duties as an advocate. Willie Kimani should be recognized as a champion of Human Rights and the Rule of Law who was killed in line of duty. Another issue that was brought to sharp focus by the disappearance, illegal detention and subsequent killing of the deceased petitioners is in regard to whether the reforms put in place within the Police Service since the promulgation of the 2010 Constitution has had any significant effect. There was recognition that over the years, the then police force had acquired a reputation for lack of accountability, distrust by the citizenry, corruption and lack for respect for human rights in the course of performance of their duties as a Police Force. Of particular note, were accusations that some elements of the Police Force were complicit in extra-judicial executions and enforced disappearances. The Police Force was accused of lethargy in investigation of cases in respect of incidences of abuses of human rights.”
[23] It is significant that the signal relied on by the respondents was not issued on the 23 rd February 2021 when the 1 st petitioner made her report but much later on 22 nd July 2021, long after this Petition had been filed. It is therefore my finding that the Subject was indeed arrested and/or abducted by police officers. It is also significant that while the subject was reported missing under the name of Bakari Mwanyota Mbwana , the OB extract and the sigal dated 22 nd July 2021 captured the name as Abukar Mbwana . Cpl. Nyamai’s evidence was also contradictory. He referred to the missing person as Abubakar Mbwana Mwanyota.
Whether the Subject is detained and/or in the custody of the Police;
[24] The petitioners conceded that, as at the time DW1 concluded his evidence, the specific place of detention of the suspect was unknown. There was no evidence availed of the Subject having been booked into custody in any police station or facility of any security agency. The petitioners were even doubtful that the Subject was still alive. Accordingly, the Court was urged by counsel for the petitioners to find that this is a classic case of enforced disappearance. There being no evidence to the contrary, I find and hold that Bakari Mwanyota Mbwana is the subject of enforced disappearance.
Whether the 1 st respondent has discharged its constitutional obligation to investigate the arrest and/or abduction of the Subject;
[25] Whether or not the Subject was a victim of thugs or terrorists, it was the duty of the State to guarantee his security. Upon a report being made by the 1 st petitioner that the subject had been forcefully taken away from his home and family, the Police were under duty to investigate the circumstances surrounding his disappearance. I note that in Law Society of Kenya & 2 others v Attorney General & 2 others, the Court found that the International Convention for the Protection of All Persons from Enforced Disappearance, 2007, though not ratified by Kenya, was applicable to cases of this nature, given the global concern over the increase in incidences of disappearance of persons. It would seem that the Convention falls under the general rules of international law and therefore applicable by dint of Article 2(5) of the Constitution.
[26] That notwithstanding, the Constitution is explicit as to the right to equal protection and benefit of the law, right to security and freedom from discrimination. Article 27 thereof states:
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
[27] Hence, in Republic v Commissioner of Police, Mohamed Ali & 3 other, Ex Parte Phylis Temwai Kipteyo [2010] eKLR, the Court held:
“All the same, the life of the victim and the interests of his family are protected by the constitution and the statutes. The State through the Respondents herein are responsible for security of citizens in this country. It is the duty of the State to inquire into any crime or suspected crime affecting any of its subjects. It is the duty of the State to investigate the disappearance of the victim herein who was its subject and its employee. The family of the victim is entitled to know where the victim is and his current status in regard to his life, health and security. The right to life is a fundamental one which this court has a duty to safeguard.”
[28] In this instance, in addition to the late dispatch of the signal about the disappearance of the Subject, it was the evidence of the 1 st petitioner that no police officer had visited her home by the time she was giving her testimony. It is also noted that no action was taken to follow up or investigate the loss of the two mobile phones belonging to the 1 st petitioner and the Subject. The record further shows that although an order was made by the Court for the loss of the two mobile phones to be investigated, no action was taken until 20 th September 2022. The lethargy exhibited by the Police in this case only confirms that they were complicit in the arrest and disappearance of the Subject.
[29] I agree entirely with the expressions of the Court in Law Society of Kenya & 2 others v Attorney General (supra) that:
“47. It is the height of impunity if Police Officers who are constitutionally charged with the duty to maintain law and order and to enforce the law for the protection of life, liberty and property and observation of human rights and freedoms were to arrest persons for whatever transgressions of the law only for such arrested persons to subsequently disappear and the Police to deny ever arresting such persons, cover up their actions and get away with it. It is cheating justice.
48. Not only should such officers be held personally liable in a criminal process for their offences against the person but the State must be held vicariously liable for the unlawful actions of its employees.”
[30] It is therefore my finding that 1 st respondent was under obligation to diligently investigate the missing person report filed by the 1 st petitioner at Inuka Police Station but utterly failed to do so.
[31] An aspect of this Petition was that under Article 35 of the Constitution the 1 st petitioner is entitled to information from the respondents of the investigations carried out by the respondents regarding the arrest, detention/abduction of the Subject Bakari Mwanyota Mbwana. The right of access to information is provided for in Article 35 of the Constitution, which states:
(1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) The State shall publish and publicise any important information affecting the nation.
[32] Under Section 4 of the Access to Information Act, every person has the right to access information unless such a right has been limited under Section 6 of the Act. Section 4 provides:
(1) Subject to this Act and any other written law, every citizen has the right of access to information held by—
(a)the State; and
(b)another person and where that information is required for the exercise or protection of any right or fundamental freedom.
(2) Subject to this Act, every citizen's right to access information is not affected by—
(a) any reason the person gives for seeking access; or
(b) the public entity's belief as to what are the person's reasons for seeking access.
(3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.
(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.
(5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.
[33] The Act, under Section 5, is explicit that a public entity should facilitate access to information held by it provided that the information is sought in accordance with the procedures set out in Section 8 , which requires that the request for information be in writing with sufficient details and particulars to enable the public officer to ascertain what information is being sought. The information should also be provided without any delay.
[34] Accordingly, in Trusted Society of Human Rights Alliance & 3 others v Judicial Service Commission & another [2016] eKLR, it was held:
“270. Article 35(1)(a) of the Constitution does not seem to impose any conditions precedent to the disclosure of information by the state. I therefore agree with the position encapsulated in The Public’s Right to Know: Principles on Freedom of Information Legislation – Article 19 at page 2 that the principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances and that public bodies have an obligation to disclose information and every member of the public has corresponding right to receive information. Further the exercise of this right should not require individuals to demonstrate a specific interest in the information. Where therefore a public authority seeks to deny access to information, it should bear the onus of justifying the refusal at each stage of the proceedings. I also endorse the definition of public bodies to include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quasi-non-governmental organisations, judicial bodies, and private bodies which carry out public functions…”
[35] Likewise, in Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2 Others [2013] eKLR, it was held:
34.The second consideration to bear in mind is that the right to information implies the entitlement by the citizen to information, but it also imposes a duty on the State with regard to provision of information. Thus, the State has a duty not only to proactively publish information in the public interest-this, I believe, is the import of Article 35(3) of the Constitution of Kenya which imposes an obligation on the State to ‘publish and publicise any important information affecting the nation’ , but also to provide open access to such specific information as people may require from the State.
35. A third consideration is the nature and form of information that should be availed by the State, and the extent to which information should be disclosed…However, there are certain international standards which offer a guide on the nature of the information to be provided, and the extent to which disclosure should go…”
[36] In the same vein, in Kenya Railways Corporation & 2 others v Okoiti & 3 others (Petition 13 & 18 (E019) of 2020 (Consolidated)) [2023] KESC 38 (KLR) (Civ) (16 June 2023) (Judgment), the Supreme Court stated:
“…whereas information held by the State ought to be freely shared except in exceptional circumstances, such information should flow from the custodian of such information to the recipients in a manner recognised under the law…”
[37] In the present case, the petitioners have not presented any evidence to show that they requested for any information in writing from any of the respondents or that access was declined. Indeed, Section 48 of the National Police Service Act provides as follows with regard to access to information:
Subject to Article 244 of the Constitution and any other law enacted pursuant to Article 35 of the Constitution, a limitation of a right shall be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and shall be limited only for purposes of ensuring-
(a) the protection of classified information;
(b) the maintenance and preservation of national security;
(b) the security and safety of officers in the Service;
(c) the independence and integrity of the Service; and
(e) the enjoyment of the rights and fundamental freedoms by any individual, does not prejudice the rights and fundamental freedoms of others.
[38] In the premises, I am not convinced that the Petitioner has proved any violation of its right of access to inf
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