THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO E449 OF 2023
IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA ART. 1, ART. 2(1), (2) and (5), ART.3(1), ART 10 (1), (2) (b), ART. 19, ART. 20 (1), (2), (3) (a), (4) (a), (b) ART.21, ART. 22, ART. 23(1), ART.24 (1), ART. 25(d), ART 28, ART. 29, ART. 48, ART 50, ART. 159(1), (2)(d) and (e), ART 165 (3)(b), (4)(6)(7), ART 258 (1), (2), ART. 259, ART. 238(1)(2)(b) ART. 239(1)(2), ART.242 (1),(2)(a), ART. 244(a), (c), ART. ART. 245(2)(b)(c)
AND
IN THE MATTER OF ART. 6(1), ART. 7, ART. 9, ART. 10(1), ART. 14 OF THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS OF 1976
AND
AND IN THE MATTER OF ART. 2, ART.3, ART. 5, ART. 6, ART. 10, ART. 12, ART. 17, ART. 18, ART. 21, ART. 22, ART. 24 AND ART. 25, OF THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCES
AND
AND IN THE MATTER OF ART.1, ART. 2(1), ART. 3(2), ART. 6, ART. 13, ART.14, ART.16 OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
AND
IN THE MATTER OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948.
AND
IN THE MATTER OF SECTION 10 OF THE NATIONAL POLICE SERVICE ACT No. 11 OF 2011
AND
AND IN THE MATTER OF SECTION 389 (1) (a), (b) OF THE CRIMINAL PROCEDURE CODE (CAP 75)
AND
IN THE MATTER OF CRIMINAL PROCEDURE CODE (DIRECTIONS IN THE NATURE OF HABEAS CORPUS) RULES 1948
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES
AND
IN THE MATTER OF VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS
AND
IN THE MATTER OF THE MYSTERIOUS AND ENFORCED DISAPPEARANCE OF OSMAN KHALIF ABDI
-BETWEEN-
YASMIN OSMAN ……………….……………..………… 1 ST PETITIONER
OSMAN KHALIF ABDI ………….…………………...… 2 ND PETITIONER
-VERSUS-
ATTORNEY GENERAL .................................................. 1 ST RESPONDENT
DIRECTOR PUBLIC PROSECUTIONS …………...... 2 ND RESPONDENT
INSPECTOR GENERAL OF POLICE …...................... 3 RD RESPONDENT
SAFARICOM LIMITED ................................................. 4 TH RESPONDENT
SARIT CENTRE SHOPPING MALL ………………… 5 TH RESPONDENT
AND
INDEPENDENT POLICING OVERSIGHT
AUTHORITY (IPOA) ............................................... INTERESTED PARTY
JUDGMENT
1. The 1 st Petitioner is an adult female of sound mind and the wife to the previously missing person, Osman Khalif Abdi, the 2 nd Petitioner. The 2 nd Petitioner is an adult male of sound mind and the reportedly missing person through an alleged abduction.
2. The Petition dated 14 th November 2023 seeks the following reliefs:
a) A declaration that the right to habeas corpus is guaranteed under Article 25 (d) of the Constitution of Kenya 2010 and cannot be limited.
b) An order for habeas corpus directed to the Respondents to produce the missing person and body.
c) An order of compensation and reparation for the violation of the fundamental rights of Osman Khalif Abdi as provided for under the constitution.
d) An order compelling Safaricom Limited to supply the Petitioner and produce before this Hon. Court the car tracking records of KCT 163H from 10 th November 2023 to date.
e) An order be issued compelling Sarit Centre Shopping Mall to supply the Petitioner and produce before this Hon. Court the CCTV footage of 10 th November 2023.
f) Costs of the Petition.
3. The Petition is supported by the sworn affidavit of the 1 st Petitioner YASMIN OSMAN dated evenly with the original Petition. She avers that on 10 th November, 2023, her husband the 2 nd Petitioner herein, Osman Khalif Abdi was abducted by six armed, unidentified men outside Sarit Centre Shopping Mall in Nairobi and when she tried to intervene and resist, she was physically assaulted.
4. She claims that the abductors forced her husband into a silver vehicle registration number KCT 163H and drove away and that he went missing. She states that she reported the kidnapping and assault at Parklands Police Station the next day, but the police never took any action to find him.
5. It is her case that she also attempted to get the CCTV footage from the mall, but the management refused to release it without a police request letter. That further, the police have deliberately failed to provide this letter, using the excuse that the investigating officer was suddenly transferred to Isiolo, which blatant lack of interest led her to suspect that the police knew where her husband was being held.
6. She pleads that her husband’s constitutional rights to life, liberty and security are being violated, particularly by the fact that his life is in grave danger alongside his status of missing person and that the Respondents have a duty to intervene under Articles 156, 157(4) and 245 of the Constitution of Kenya 2010 . She also expressed deep fear for her husband’s life and urgently sought the Court’s intervention for an order of Habeas Corpus to force the authorities to produce her husband before the court before he is seriously harmed or killed.
7. Before the Petition could be admitted for hearing and directions given, the 2 nd Respondent resurfaced, precipitating the filing of an amended Petition, dated 14 th day of February 2025 in which they sought the following prayers: -
(a) A declaration that by abducting the 2 nd Petitioner, the 3 rd Respondent violated the 2 nd Petitioner's Fundamental Rights and Freedoms under the Constitution of Kenya and the International Convention for the Protection of All Persons from Enforced Disappearance.
(a) That this Honorable Court be pleased to issue an Order directing the Parliament of Kenya to domesticate the International Convention for the Protection of All Persons from Enforced Disappearance by passing the relevant legislation.
(b) An order of compensation and reparation for the violation of the fundamental rights of Osman Khalif Abdi as provided for under the constitution.
(c) That this Honorable Court be pleased to declare that the 3 rd Respondent was culpable for the 2 nd Petitioner's abduction by failing to investigate the incident and releasing him shortly after this Court issued a writ of Habeas Corpus.
(d) That this Honorable Court be pleased to declare that the 3 rd Respondent failed to conduct its constitutional mandate in line with the principles of national security.
(e) Costs of the Petition.
Responses
8. In response to the Petition, the 1 st and 3 rd Respondents filed a Replying Affidavit dated 21 st November 2023 sworn by No. 218408 PETER NJERU NTHIGAH, a Commissioner of Police in the National Police Service (RCIO) Nairobi, an office under the Directorate of Criminal Investigations (DCI). It is averred that on the 10 th of November 2023, the 1 st Petitioner made a report vide OB Number 39 and 58 of the alleged abduction of the 2 nd Petitioner at around 1900HRS at the Sarit Centre Shopping Mall in a silver Toyota double cabin pick-up motor vehicle registration number КСТ 163H.
9. That contrary to her claims of inaction, it is asserted that they responded immediately to the report as police officers visited the scene, found the couple’s personal car registration No. KDH 543A still parked outside Sarit Centre and towed it to the police station for safekeeping since the 2 nd Petitioner was still in possession of the keys.
10. The deponent states that an official inquiry file reference No. 18 of 2023 was opened to conduct investigations which were still ongoing and the wife who was the only witness recorded her statement.
11. He pleads that in furtherance to their investigations, they wrote a letter to the Directorate of Registration and Licensing, National Transport and Safety Authority (NTSA) requesting a print-out of the details of the motor vehicle number KCT 163H and traced the license plate number KCT 163H. That the NTSA records revealed that the said plate is legally registered to a yellow commercial bus owned by Kwazulu Logistics Limited, not a silver Toyota pickup as described by the 1 st petitioner.
12. It is stated that vide a letter dated 10 th November 2023 marked as “PNN 3”, police officers also requested the management of Sarit Centre for CCTV footage to see if the movements of the Petitioners had been captured, thereby refuting the 1 st Petitioner’s claim that police refused to request CCTV.
13. It is their case that the Sarit Centre management response in a letter dated 17 th November 2023 was that the abduction occurred on the public road -Pio Gama Road, which falls outside their camera coverage.
14. It is also averred that they are investigating the Kwazulu Logistics Limited as demonstrated by their letter of request for information from the Business Registration Service dated 17 th November 2023.
15. The police accuse the 1 st Petitioner of hindering the investigation because they requested her to hand over her husband’s mobile phone for forensic data analysis, but she has refused to comply.
16. Furthermore, when officers visited her home in South C to continue investigations, she was not home and was unreachable by phone. The Respondents maintain that investigations were actively ongoing to locate the missing man and arrest the perpetrators and a progress report reference CID/C/CRI/6/4/VOL.50/26 had already been submitted to the Director of Criminal Investigations.
17. In further response to the amended Petition, the 1 st and 3 rd Respondent s filed a Replying Affidavit dated 10 th July 2025 sworn BENSON KASYOKI, Commissioner of Police in the (RCIO) Nairobi, currently serving as the Regional Criminal Investigations Service Investigations (DCI). He avers that the police have opened an official inquiry file No. 18 of 2023 to investigate the 2 nd Petitioner’s disappearance and those investigations are currently ongoing.
18. The DCI completely denies any involvement in the 2 nd Petitioner’s alleged abduction and assert that no evidence was tendered by the Petitioners to provide any solid proof linking the DCI to the disappearance, dismissing the claims as mere conjecture.
19. The Commissioner points to a previously filed affidavit dated 21 st November 2023 by his predecessor, which already detailed the exact steps the police took when they first received the abduction report and argues that the specific orders the Petitioners are asking the court to grant would violate the constitutional principle of separation of powers and interfere with the authority granted to Parliament.
20. The 2 nd Respondent the Director of Public Prosecutions filed Grounds of Opposition dated 17 th November 2023 where they oppose the Petition on several grounds inter alia that the powers of the 2 nd Respondent under Article 157 do not include power to arrest or detain a person but instead their constitutional role is strictly to prosecute cases in court. They do not have the legal authority to arrest, detain, or physically produce anyone.
21. It is their case that the DPP has no open files nor have they received any formal complaints against the Petitioners and further assert that they have never ordered the police/the 3 rd Respondent to investigate or arrest the 2 nd Petitioner.
22. They assert that they cannot comply with court orders because they have never had any contact with the 2 nd Petitioner and cannot physically comply with any court order demanding the production of the 2 nd Petitioner. It is their position that since the issues raised don’t fall under the DPP’s constitutional duties, the Petitioners are suing the wrong person.
23. The 4 th Respondent filed a Replying Affidavit dated 18 th November 2023 sworn by Daniel Mwenja Ndaba a Senior Legal Litigation Counsel at Safaricom PLC. He avers that the Court issued an order on 17 th November, 2023 compelling the 4 th Respondent to produce before the Court the car tracking records of KCT 163H from 10 th November, 2023. However, they argue that this is impossible and the said orders ought to be discharged against them because they are a telecom provider duly licensed in accordance with section 79 of the Kenya Information and Communications Act, No. 2 of 1998 , not a vehicle tracking company and thus, cannot physically comply.
24. It is explained in the affidavit that vehicle tracking, CCTV and automatic number plate recognition are handled exclusively by the National Police’s surveillance system (IC3/CIMS). That consequently, it would actually be a breach of national security for a private telecom company to have access to this system.
25. It is averred that the 4 th Respondent is in danger of unfair punishment because the 17 th November 2023 court order stands, and that there is an imminent risk of being found in ‘contempt of court’ for failing to produce records they never had in the first place.
26. They also plead that the Court issued a final, binding order against the 4 th Respondent at an early stage without giving them a chance to formally respond or defend themselves. They completely deny violating any of the petitioners’ constitutional rights, stating they are entirely strangers to the allegations and urge the Court to discharge them from the proceedings as they are not a necessary party.
27. The 5 th Respondent Sarit Centre Shopping Mall also filed a Replying Affidavit dated 21 st November 2023 and sworn by Nahashon Naviswa, in which he deposes that on 16 th November 2023, they received a letter from the Directorate of Criminal Investigations (“DCI”) dated 10 th November 2023 requesting access to the CCTV footage at Sarit Centre to assist them in the investigation of the alleged abduction of the 2 nd Petitioner.
28. He asserts that they responded to the DCI’s request vide letter dated 17 th November 2023 in which they informed them that the alleged abduction happened along Pio Gama road and not within Sarit Centre consequently their CCTV did not cover the said area
29. That further, following a court order issued on 17 th November 2023, Sarit Centre complied by handing over all available CCTV footage to the court and the petitioners’ lawyers which footage shows the couple inside the mall and exiting onto Pio Gama Road.
30. It is their evidence that the mall cannot provide footage of the actual abduction or the couple’s parked car. They reiterate that the kidnapping took place on a public road along Pio Gama Road in a parking lot managed by the Nairobi County Government and because this location is outside private mall property, Sarit Centre's cameras do not cover that area. The footage of the couple exiting the mall is the extent of what they have.
31. It is explained that they had already told the police this, days before the court order was made. The 5 th Respondent argues that because their footage proves the abduction did not happen on their premises, they have no further role to play in this case and urge the court to dismiss the claims against them, terming the lawsuit against them frivolous and vexatious, and state they will apply to be fully discharged from the legal proceedings.
32. Parties filed written submissions to canvass the petition.
The Submissions
33. The Petitioners’ Submissions are dated 4 th November 2024 . Counsel submits on behalf of the Petitioners on two issues being:
Whether the rights of the Petitioners were violated; and
Whether the Petitioners are entitled to compensation for these violations .
34. On the first issue, it is submitted that the abduction and assault violate fundamental rights protected by the Constitution under Article 29 on freedom and security and Articles 25 & 28 on absolute freedom from torture and protection of human dignity, as well as international treaties like the International Covenant on Civil and Political Rights (the ICCPR) to which Kenya is a signatory at Article 9 and the Convention against Enforced Disappearances at Article 3 .
35. Counsel submits that even if the police didn’t physically carry out the abduction, they are heavily implicated. The 1 st Petitioner reported the crime and pleaded for help, but the police at Parklands Station showed a blatant reluctance to act which inaction suggested complicity and negligence. Counsel cited the case of Republic v Service & 2 others; Resilient Investments Limited & 3 others (Interested Party); Limited (Exparte) (Judicial Review Application E037 of 2021) [2022] KEHC 43 (KLR) (4 February 2022) (Judgment).
36. The Petitioners argue that this isn’t an isolated incident, but part of a rampant trend in Kenya where law enforcement officers arbitrarily profile, arrest and detain citizens without evidence, which the courts have previously condemned as in the case of Antony Njenga Mbuli and 5 others v Attorney General. Counsel reiterated the Court’s duty to protect liberty citing the cases of Moses Tengeya Omweno v Commissioner of Police & Another, Civil Appeal 243 of 2011 [2018] eKLR, Michael Rotich v Republic [2016] eKLR and the Indian Supreme Court case of Neeru Yadav v State of U.P & Another, Criminal Appeal No. 2587 of 2014 , and submitted that the Court has a constitutional duty to aggressively safeguard the Petitioners’ rights to personal security, dignity, and freedom from torture and inhuman or degrading treatment and ensure they are not infringed without lawful justification.
37. On the issue of compensation, Counsel relies on Article 23(3)(e) of the Constitution and the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR to justify financial compensation and asserts that it is not just about paying the victim but seeks a broader social impact of the rights violation through vindicating the victim, and deterring the state from future violations. They urge that the Petition be found merited and prayers sought granted.
38. The 1 st and 3 rd Respondents Submissions are dated 14 th June 2025 . Counsel isolates two main issues for determination being:
Whether the Respondents have violated the Petitioner’s rights; and
Whether the orders sought ought to be granted.
39. On the first issue, it is submitted that the Petition does not meet the legal requirements for a constitutional case as laid out in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and emphasized in the case of Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR because the Petitioners cannot show exactly how the police violated their rights. It is submitted that there is no evidence linking the police to the crime because according to the 1 st Petitioner’s own official police report, her husband the 2 nd Petitioner was grabbed by five unknown armed men who did not identify themselves as police. Furthermore, the 2 nd Petitioner has not provided any affidavit or evidence identifying his abductors.
40. It is stated also that the police acted promptly contrary to claims of their inaction since officers from Parklands and the DCI immediately went to the scene, secured the Petitioners’ abandoned car and opened an active investigation file No. 18 of 2023 which documentary proof they have provided to the Court. It is also submitted on this issue that the Petitioners frustrated the investigation when the police requested the 2 nd Petitioner’s mobile phone for forensic analysis to help track down the real culprits, but the 1 st Petitioner refused to hand it over.
41. On the second issue, Counsel submitted that when a party seeking the intervention of the court wilfully refuses or tacitly acts in a manner that would defeat the ends for which she has approached the court, as is the case in the instant Petition, the Court ought to dismiss the Petition so as to save judicial time. The case of Caroline Wairimu Wanjihia v Inspector General of Police & 2 others [2016] KEHC 731 (KLR) , was persuasively relied on where Onguto J. stated that the court will only intervene in exceptional circumstances where it is shown that the process undertaken by constitutional offices in the discharge of their functions has been subjected to abuse.
42. Counsel also cited Manilal Jamnadas Ramji Gohil vs. Director of Public Prosecutions C.A. Crim App No 57 of 2013 and Paul Nganga Nyaga & 2 Others vs. Attorney General & 3 Others [2013] eKLR . That the burden to establish such exceptional circumstances that would warrant the court’s intervention lay upon the Petitioner as held in Koinange vs. Attorney General & Others [2007] 2 EA 256.
43. It is submitted that the case is moot and not ripe because the 2 nd Petitioner has safely resurfaced, rendering the main purpose of the petition which was to find him, extinguished and since the Petitioners still haven’t identified the actual abductors, there is no concrete legal dispute for the court to resolve. The cases of Kenya Human Rights Commission v National Transport and Safety Authority & 2 others [2025] KEHC 4389 (KLR) and County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic Of Kenya [2021] KEHC 304 (KLR) were cited on the doctrine of ripeness.
44. On the prayer seeking an order to direct Parliament to domesticate the International Convention for the Protection of all Persons from Enforced Disappearance by passing the relevant legislation, it is submitted that the same constitutes overstepping constitutional boundaries because the Petitioners are inadvertently asking the Court to order the ratification of an international treaty. The 1 st and 3 rd Respondents argue that this is strictly the job of Parliament, not the courts and making such an order would violate the constitutional separation of powers as the said powers belong exclusively to Parliament under Articles 94, 95 and 96 of the Constitution .
45. Counsel submits that there is no new evidence tendered in the amended Petition to change anything since it merely brings forward the same claims without any new, solid proof. It is also their case that constitutional damages are not automatic under Article 23 (3) of the Constitution , that they are meant to vindicate a right, not just punish and require a high threshold of proof that the Petitioners have not met. The Court of Appeal case in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) was cited where the court quoted with approval the case of Tamara Merson v Drexel Cartwright and Ag (Bahamas) Privy Council Appeal No. 61 of 2003 where the Privy Council held that in some cases, a suitable declaration may suffice to vindicate the right which has been breached.
46. Lastly it was submitted that the Petition was marred by a factual vacuum. In relying on the fundamental rule that "he who alleges must prove," under Section 107 (1) of the Evidence Act and relying on the case of Leonard Otieno v Airtel Kenya Limited [2018] eKLR , Counsel submits that the Petitioners have failed to provide actual evidence and that constitutional rights cannot be violated in a factual vacuum based on unsupported hypotheses. They urged the Court to dismiss the Petition.
47. The 2 nd Respondent’s Submissions are dated 14 th February 2025 . Counsel submits on two issues being: Whether the Petition discloses any right to relief against the 2 nd Respondent and Whether the 2 nd Respondent is a necessary party to the suit as a Respondent.
48. Counsel submits that the Petition fails to meet the threshold of the Anarita Karimi Njeru Rule in Anarita Karimi Njeru v Republic (No.1)- [1979] KLR 154 and reiterated in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR and Rule 10 of the Mutunga Rules which requires a petitioner to state the facts relied upon, identify the constitutional violation and disclose the nature of the injuries and the reliefs sought. That consequently, a constitutional petition cannot just list generic complaints and the Petitioners herein were required to state with reasonable degree of precision exactly how the DPP violated their rights. The DPP argues that the Petitioners provided zero to nil facts linking them to any violation contrary to the holding of Mativo J. in Leonard Otieno v Airtel Kenya Limited [2018] eKLR .
49. The DPP submits that it is not a necessary party and being that they have been sued as a respondent, there must be a right to relief against them and their presence must be absolutely necessary to resolve the dispute. The DPP argues that they meet neither criterion. They rely on the case of Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] eKLR where Justice Odunga quoted with approval the case of Pravin Bowry vs. John Ward and Another [2015] eKLR, Deported Asians Custodian Board vs. Jaffer Brothers Ltd [1999] 1 E.A. 55 (SCU) as well as Civicon Limited vs. Kivuwatt Limited and 2 Others [2015] eKLR, Kingori vs. Chege & 3 Others [2002] 2 KLR 243 .
50. Counsel for the DPP points out that if this case goes to trial, the DPP is the one who will eventually have to prosecute the actual abductors. That accordingly, keeping the DPP tied up as an adversary in the civil petition damages their ability to independently prosecute the criminals later. They urge that the suit be dismissed against them.
Analysis and Determination
51. Having considered the amended Petition, the affidavits in support and in opposition together with the submissions before the Court, I isolate the following issues for my determination: -
(i) Whether the 2 nd Respondent (DPP) and 5 th Respondent (Sarit Centre) are proper parties to this suit or if they should be expunged.
(ii) Whether the Petition meets the constitutional threshold of specificity and whether the Respondents violated the Petitioners’ constitutional rights as alleged.
(iii) Whether the Petitioners are entitled to the reliefs sought, including financial compensation.
(i) Whether the 2 nd Respondent (DPP) and 5 th Respondent (Sarit Centre) are proper parties to this suit or if they should be expunged.
52. It is a well-established tenet of law that a party should only be joined to a suit if their presence is necessary for the Court to effectively adjudicate over the dispute. This is determined by the pleadings and more importantly by the cause of action being sought from the court and the remedies or reliefs prayed for.
53. The 1 st Petitioner initially sought court orders to force the police to find and produce her kidnapped husband, the 2 nd Petitioner. This prayer subsequently evolved when the 2 nd Petitioner resurfaced. The core of this Petition is therefore a failure to investigate and the alleged complicity of the Respondents in the kidnapping.
54. The 2 nd Respondent the DPP is arguing that they are an improper party to this lawsuit because they have no power to arrest, no connection to the Petitioners’ claims and should therefore be dismissed (expunged) from the case. In their submissions, the DPP argues that the Petitioners failed to provide any legal or factual basis to sue them and that their inclusion in the case is legally improper or that there is a misjoinder. They are asking the Court to officially declare that they are not a proper party to the suit and dismiss them from the proceedings.
55. The office of the 2 nd Respondent the DPP is well established under Article 157 of the Constitution and further enshrined in the Office of the Director of Public Prosecutions Act Cap 6B . In particular, Article 157 states: -
(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
(5) ______
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
56. It follows then that, the 2 nd Respondent is vested with the constitutional mandate to conduct and authorize prosecution of criminal offences. In the present case, none of the Petitioners have pleaded the existence of any ongoing criminal investigations against any of them and particularly the 2 nd Petitioner. It is also the 2 nd Respondent’s Ground of Opposition that they have neither received any formal complaints nor have an active file opened against the 2 nd Petitioner and that they have never had any contact with the 2 nd Petitioner. They assert in their submissions that even the prayers sought in the Petition do not fall within their constitutional and statutory mandates.
57. I have read the prayers sought by the Petitioners together with the grounds in support and it is my finding that not only are the said orders, if granted, not enforceable by the 2 nd Respondent, but that there is also no evidence adduced by the Petitioners to demonstrate that the 2 nd Respondent had participated in the incident that led to this Petition to begin with. There is also no evidence of criminal conduct on the part of the 2 nd Petitioner to warrant an investigation and subsequent forwarding of his file to the DPP for consideration of making the prosecution decision.
58. It is also my finding that the DPP does not command pol
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO E449 OF 2023
IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA ART. 1, ART. 2(1), (2) and (5), ART.3(1), ART 10 (1), (2) (b), ART. 19, ART. 20 (1), (2), (3) (a), (4) (a), (b) ART.21, ART. 22, ART. 23(1), ART.24 (1), ART. 25(d), ART 28, ART. 29, ART. 48, ART 50, ART. 159(1), (2)(d) and (e), ART 165 (3)(b), (4)(6)(7), ART 258 (1), (2), ART. 259, ART. 238(1)(2)(b) ART. 239(1)(2), ART.242 (1),(2)(a), ART. 244(a), (c), ART. ART. 245(2)(b)(c)
AND
IN THE MATTER OF ART. 6(1), ART. 7, ART. 9, ART. 10(1), ART. 14 OF THE INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS OF 1976
AND
AND IN THE MATTER OF ART. 2, ART.3, ART. 5, ART. 6, ART. 10, ART. 12, ART. 17, ART. 18, ART. 21, ART. 22, ART. 24 AND ART. 25, OF THE INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCES
AND
AND IN THE MATTER OF ART.1, ART. 2(1), ART. 3(2), ART. 6, ART. 13, ART.14, ART.16 OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
AND
IN THE MATTER OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948.
AND
IN THE MATTER OF SECTION 10 OF THE NATIONAL POLICE SERVICE ACT No. 11 OF 2011
AND
AND IN THE MATTER OF SECTION 389 (1) (a), (b) OF THE CRIMINAL PROCEDURE CODE (CAP 75)
AND
IN THE MATTER OF CRIMINAL PROCEDURE CODE (DIRECTIONS IN THE NATURE OF HABEAS CORPUS) RULES 1948
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES
AND
IN THE MATTER OF VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS
AND
IN THE MATTER OF THE MYSTERIOUS AND ENFORCED DISAPPEARANCE OF OSMAN KHALIF ABDI
-BETWEEN-
YASMIN OSMAN ……………….……………..………… 1 ST PETITIONER
OSMAN KHALIF ABDI ………….…………………...… 2 ND PETITIONER
-VERSUS-
ATTORNEY GENERAL .................................................. 1 ST RESPONDENT
DIRECTOR PUBLIC PROSECUTIONS …………...... 2 ND RESPONDENT
INSPECTOR GENERAL OF POLICE …...................... 3 RD RESPONDENT
SAFARICOM LIMITED ................................................. 4 TH RESPONDENT
SARIT CENTRE SHOPPING MALL ………………… 5 TH RESPONDENT
AND
INDEPENDENT POLICING OVERSIGHT
AUTHORITY (IPOA) ............................................... INTERESTED PARTY
JUDGMENT
1. The 1 st Petitioner is an adult female of sound mind and the wife to the previously missing person, Osman Khalif Abdi, the 2 nd Petitioner. The 2 nd Petitioner is an adult male of sound mind and the reportedly missing person through an alleged abduction.
2. The Petition dated 14 th November 2023 seeks the following reliefs:
a) A declaration that the right to habeas corpus is guaranteed under Article 25 (d) of the Constitution of Kenya 2010 and cannot be limited.
b) An order for habeas corpus directed to the Respondents to produce the missing person and body.
c) An order of compensation and reparation for the violation of the fundamental rights of Osman Khalif Abdi as provided for under the constitution.
d) An order compelling Safaricom Limited to supply the Petitioner and produce before this Hon. Court the car tracking records of KCT 163H from 10 th November 2023 to date.
e) An order be issued compelling Sarit Centre Shopping Mall to supply the Petitioner and produce before this Hon. Court the CCTV footage of 10 th November 2023.
f) Costs of the Petition.
3. The Petition is supported by the sworn affidavit of the 1 st Petitioner YASMIN OSMAN dated evenly with the original Petition. She avers that on 10 th November, 2023, her husband the 2 nd Petitioner herein, Osman Khalif Abdi was abducted by six armed, unidentified men outside Sarit Centre Shopping Mall in Nairobi and when she tried to intervene and resist, she was physically assaulted.
4. She claims that the abductors forced her husband into a silver vehicle registration number KCT 163H and drove away and that he went missing. She states that she reported the kidnapping and assault at Parklands Police Station the next day, but the police never took any action to find him.
5. It is her case that she also attempted to get the CCTV footage from the mall, but the management refused to release it without a police request letter. That further, the police have deliberately failed to provide this letter, using the excuse that the investigating officer was suddenly transferred to Isiolo, which blatant lack of interest led her to suspect that the police knew where her husband was being held.
6. She pleads that her husband’s constitutional rights to life, liberty and security are being violated, particularly by the fact that his life is in grave danger alongside his status of missing person and that the Respondents have a duty to intervene under Articles 156, 157(4) and 245 of the Constitution of Kenya 2010 . She also expressed deep fear for her husband’s life and urgently sought the Court’s intervention for an order of Habeas Corpus to force the authorities to produce her husband before the court before he is seriously harmed or killed.
7. Before the Petition could be admitted for hearing and directions given, the 2 nd Respondent resurfaced, precipitating the filing of an amended Petition, dated 14 th day of February 2025 in which they sought the following prayers: -
(a) A declaration that by abducting the 2 nd Petitioner, the 3 rd Respondent violated the 2 nd Petitioner's Fundamental Rights and Freedoms under the Constitution of Kenya and the International Convention for the Protection of All Persons from Enforced Disappearance.
(a) That this Honorable Court be pleased to issue an Order directing the Parliament of Kenya to domesticate the International Convention for the Protection of All Persons from Enforced Disappearance by passing the relevant legislation.
(b) An order of compensation and reparation for the violation of the fundamental rights of Osman Khalif Abdi as provided for under the constitution.
(c) That this Honorable Court be pleased to declare that the 3 rd Respondent was culpable for the 2 nd Petitioner's abduction by failing to investigate the incident and releasing him shortly after this Court issued a writ of Habeas Corpus.
(d) That this Honorable Court be pleased to declare that the 3 rd Respondent failed to conduct its constitutional mandate in line with the principles of national security.
(e) Costs of the Petition.
Responses
8. In response to the Petition, the 1 st and 3 rd Respondents filed a Replying Affidavit dated 21 st November 2023 sworn by No. 218408 PETER NJERU NTHIGAH, a Commissioner of Police in the National Police Service (RCIO) Nairobi, an office under the Directorate of Criminal Investigations (DCI). It is averred that on the 10 th of November 2023, the 1 st Petitioner made a report vide OB Number 39 and 58 of the alleged abduction of the 2 nd Petitioner at around 1900HRS at the Sarit Centre Shopping Mall in a silver Toyota double cabin pick-up motor vehicle registration number КСТ 163H.
9. That contrary to her claims of inaction, it is asserted that they responded immediately to the report as police officers visited the scene, found the couple’s personal car registration No. KDH 543A still parked outside Sarit Centre and towed it to the police station for safekeeping since the 2 nd Petitioner was still in possession of the keys.
10. The deponent states that an official inquiry file reference No. 18 of 2023 was opened to conduct investigations which were still ongoing and the wife who was the only witness recorded her statement.
11. He pleads that in furtherance to their investigations, they wrote a letter to the Directorate of Registration and Licensing, National Transport and Safety Authority (NTSA) requesting a print-out of the details of the motor vehicle number KCT 163H and traced the license plate number KCT 163H. That the NTSA records revealed that the said plate is legally registered to a yellow commercial bus owned by Kwazulu Logistics Limited, not a silver Toyota pickup as described by the 1 st petitioner.
12. It is stated that vide a letter dated 10 th November 2023 marked as “PNN 3”, police officers also requested the management of Sarit Centre for CCTV footage to see if the movements of the Petitioners had been captured, thereby refuting the 1 st Petitioner’s claim that police refused to request CCTV.
13. It is their case that the Sarit Centre management response in a letter dated 17 th November 2023 was that the abduction occurred on the public road -Pio Gama Road, which falls outside their camera coverage.
14. It is also averred that they are investigating the Kwazulu Logistics Limited as demonstrated by their letter of request for information from the Business Registration Service dated 17 th November 2023.
15. The police accuse the 1 st Petitioner of hindering the investigation because they requested her to hand over her husband’s mobile phone for forensic data analysis, but she has refused to comply.
16. Furthermore, when officers visited her home in South C to continue investigations, she was not home and was unreachable by phone. The Respondents maintain that investigations were actively ongoing to locate the missing man and arrest the perpetrators and a progress report reference CID/C/CRI/6/4/VOL.50/26 had already been submitted to the Director of Criminal Investigations.
17. In further response to the amended Petition, the 1 st and 3 rd Respondent s filed a Replying Affidavit dated 10 th July 2025 sworn BENSON KASYOKI, Commissioner of Police in the (RCIO) Nairobi, currently serving as the Regional Criminal Investigations Service Investigations (DCI). He avers that the police have opened an official inquiry file No. 18 of 2023 to investigate the 2 nd Petitioner’s disappearance and those investigations are currently ongoing.
18. The DCI completely denies any involvement in the 2 nd Petitioner’s alleged abduction and assert that no evidence was tendered by the Petitioners to provide any solid proof linking the DCI to the disappearance, dismissing the claims as mere conjecture.
19. The Commissioner points to a previously filed affidavit dated 21 st November 2023 by his predecessor, which already detailed the exact steps the police took when they first received the abduction report and argues that the specific orders the Petitioners are asking the court to grant would violate the constitutional principle of separation of powers and interfere with the authority granted to Parliament.
20. The 2 nd Respondent the Director of Public Prosecutions filed Grounds of Opposition dated 17 th November 2023 where they oppose the Petition on several grounds inter alia that the powers of the 2 nd Respondent under Article 157 do not include power to arrest or detain a person but instead their constitutional role is strictly to prosecute cases in court. They do not have the legal authority to arrest, detain, or physically produce anyone.
21. It is their case that the DPP has no open files nor have they received any formal complaints against the Petitioners and further assert that they have never ordered the police/the 3 rd Respondent to investigate or arrest the 2 nd Petitioner.
22. They assert that they cannot comply with court orders because they have never had any contact with the 2 nd Petitioner and cannot physically comply with any court order demanding the production of the 2 nd Petitioner. It is their position that since the issues raised don’t fall under the DPP’s constitutional duties, the Petitioners are suing the wrong person.
23. The 4 th Respondent filed a Replying Affidavit dated 18 th November 2023 sworn by Daniel Mwenja Ndaba a Senior Legal Litigation Counsel at Safaricom PLC. He avers that the Court issued an order on 17 th November, 2023 compelling the 4 th Respondent to produce before the Court the car tracking records of KCT 163H from 10 th November, 2023. However, they argue that this is impossible and the said orders ought to be discharged against them because they are a telecom provider duly licensed in accordance with section 79 of the Kenya Information and Communications Act, No. 2 of 1998 , not a vehicle tracking company and thus, cannot physically comply.
24. It is explained in the affidavit that vehicle tracking, CCTV and automatic number plate recognition are handled exclusively by the National Police’s surveillance system (IC3/CIMS). That consequently, it would actually be a breach of national security for a private telecom company to have access to this system.
25. It is averred that the 4 th Respondent is in danger of unfair punishment because the 17 th November 2023 court order stands, and that there is an imminent risk of being found in ‘contempt of court’ for failing to produce records they never had in the first place.
26. They also plead that the Court issued a final, binding order against the 4 th Respondent at an early stage without giving them a chance to formally respond or defend themselves. They completely deny violating any of the petitioners’ constitutional rights, stating they are entirely strangers to the allegations and urge the Court to discharge them from the proceedings as they are not a necessary party.
27. The 5 th Respondent Sarit Centre Shopping Mall also filed a Replying Affidavit dated 21 st November 2023 and sworn by Nahashon Naviswa, in which he deposes that on 16 th November 2023, they received a letter from the Directorate of Criminal Investigations (“DCI”) dated 10 th November 2023 requesting access to the CCTV footage at Sarit Centre to assist them in the investigation of the alleged abduction of the 2 nd Petitioner.
28. He asserts that they responded to the DCI’s request vide letter dated 17 th November 2023 in which they informed them that the alleged abduction happened along Pio Gama road and not within Sarit Centre consequently their CCTV did not cover the said area
29. That further, following a court order issued on 17 th November 2023, Sarit Centre complied by handing over all available CCTV footage to the court and the petitioners’ lawyers which footage shows the couple inside the mall and exiting onto Pio Gama Road.
30. It is their evidence that the mall cannot provide footage of the actual abduction or the couple’s parked car. They reiterate that the kidnapping took place on a public road along Pio Gama Road in a parking lot managed by the Nairobi County Government and because this location is outside private mall property, Sarit Centre's cameras do not cover that area. The footage of the couple exiting the mall is the extent of what they have.
31. It is explained that they had already told the police this, days before the court order was made. The 5 th Respondent argues that because their footage proves the abduction did not happen on their premises, they have no further role to play in this case and urge the court to dismiss the claims against them, terming the lawsuit against them frivolous and vexatious, and state they will apply to be fully discharged from the legal proceedings.
32. Parties filed written submissions to canvass the petition.
The Submissions
33. The Petitioners’ Submissions are dated 4 th November 2024 . Counsel submits on behalf of the Petitioners on two issues being:
Whether the rights of the Petitioners were violated; and
Whether the Petitioners are entitled to compensation for these violations .
34. On the first issue, it is submitted that the abduction and assault violate fundamental rights protected by the Constitution under Article 29 on freedom and security and Articles 25 & 28 on absolute freedom from torture and protection of human dignity, as well as international treaties like the International Covenant on Civil and Political Rights (the ICCPR) to which Kenya is a signatory at Article 9 and the Convention against Enforced Disappearances at Article 3 .
35. Counsel submits that even if the police didn’t physically carry out the abduction, they are heavily implicated. The 1 st Petitioner reported the crime and pleaded for help, but the police at Parklands Station showed a blatant reluctance to act which inaction suggested complicity and negligence. Counsel cited the case of Republic v Service & 2 others; Resilient Investments Limited & 3 others (Interested Party); Limited (Exparte) (Judicial Review Application E037 of 2021) [2022] KEHC 43 (KLR) (4 February 2022) (Judgment).
36. The Petitioners argue that this isn’t an isolated incident, but part of a rampant trend in Kenya where law enforcement officers arbitrarily profile, arrest and detain citizens without evidence, which the courts have previously condemned as in the case of Antony Njenga Mbuli and 5 others v Attorney General. Counsel reiterated the Court’s duty to protect liberty citing the cases of Moses Tengeya Omweno v Commissioner of Police & Another, Civil Appeal 243 of 2011 [2018] eKLR, Michael Rotich v Republic [2016] eKLR and the Indian Supreme Court case of Neeru Yadav v State of U.P & Another, Criminal Appeal No. 2587 of 2014 , and submitted that the Court has a constitutional duty to aggressively safeguard the Petitioners’ rights to personal security, dignity, and freedom from torture and inhuman or degrading treatment and ensure they are not infringed without lawful justification.
37. On the issue of compensation, Counsel relies on Article 23(3)(e) of the Constitution and the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR to justify financial compensation and asserts that it is not just about paying the victim but seeks a broader social impact of the rights violation through vindicating the victim, and deterring the state from future violations. They urge that the Petition be found merited and prayers sought granted.
38. The 1 st and 3 rd Respondents Submissions are dated 14 th June 2025 . Counsel isolates two main issues for determination being:
Whether the Respondents have violated the Petitioner’s rights; and
Whether the orders sought ought to be granted.
39. On the first issue, it is submitted that the Petition does not meet the legal requirements for a constitutional case as laid out in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and emphasized in the case of Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR because the Petitioners cannot show exactly how the police violated their rights. It is submitted that there is no evidence linking the police to the crime because according to the 1 st Petitioner’s own official police report, her husband the 2 nd Petitioner was grabbed by five unknown armed men who did not identify themselves as police. Furthermore, the 2 nd Petitioner has not provided any affidavit or evidence identifying his abductors.
40. It is stated also that the police acted promptly contrary to claims of their inaction since officers from Parklands and the DCI immediately went to the scene, secured the Petitioners’ abandoned car and opened an active investigation file No. 18 of 2023 which documentary proof they have provided to the Court. It is also submitted on this issue that the Petitioners frustrated the investigation when the police requested the 2 nd Petitioner’s mobile phone for forensic analysis to help track down the real culprits, but the 1 st Petitioner refused to hand it over.
41. On the second issue, Counsel submitted that when a party seeking the intervention of the court wilfully refuses or tacitly acts in a manner that would defeat the ends for which she has approached the court, as is the case in the instant Petition, the Court ought to dismiss the Petition so as to save judicial time. The case of Caroline Wairimu Wanjihia v Inspector General of Police & 2 others [2016] KEHC 731 (KLR) , was persuasively relied on where Onguto J. stated that the court will only intervene in exceptional circumstances where it is shown that the process undertaken by constitutional offices in the discharge of their functions has been subjected to abuse.
42. Counsel also cited Manilal Jamnadas Ramji Gohil vs. Director of Public Prosecutions C.A. Crim App No 57 of 2013 and Paul Nganga Nyaga & 2 Others vs. Attorney General & 3 Others [2013] eKLR . That the burden to establish such exceptional circumstances that would warrant the court’s intervention lay upon the Petitioner as held in Koinange vs. Attorney General & Others [2007] 2 EA 256.
43. It is submitted that the case is moot and not ripe because the 2 nd Petitioner has safely resurfaced, rendering the main purpose of the petition which was to find him, extinguished and since the Petitioners still haven’t identified the actual abductors, there is no concrete legal dispute for the court to resolve. The cases of Kenya Human Rights Commission v National Transport and Safety Authority & 2 others [2025] KEHC 4389 (KLR) and County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic Of Kenya [2021] KEHC 304 (KLR) were cited on the doctrine of ripeness.
44. On the prayer seeking an order to direct Parliament to domesticate the International Convention for the Protection of all Persons from Enforced Disappearance by passing the relevant legislation, it is submitted that the same constitutes overstepping constitutional boundaries because the Petitioners are inadvertently asking the Court to order the ratification of an international treaty. The 1 st and 3 rd Respondents argue that this is strictly the job of Parliament, not the courts and making such an order would violate the constitutional separation of powers as the said powers belong exclusively to Parliament under Articles 94, 95 and 96 of the Constitution .
45. Counsel submits that there is no new evidence tendered in the amended Petition to change anything since it merely brings forward the same claims without any new, solid proof. It is also their case that constitutional damages are not automatic under Article 23 (3) of the Constitution , that they are meant to vindicate a right, not just punish and require a high threshold of proof that the Petitioners have not met. The Court of Appeal case in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) was cited where the court quoted with approval the case of Tamara Merson v Drexel Cartwright and Ag (Bahamas) Privy Council Appeal No. 61 of 2003 where the Privy Council held that in some cases, a suitable declaration may suffice to vindicate the right which has been breached.
46. Lastly it was submitted that the Petition was marred by a factual vacuum. In relying on the fundamental rule that "he who alleges must prove," under Section 107 (1) of the Evidence Act and relying on the case of Leonard Otieno v Airtel Kenya Limited [2018] eKLR , Counsel submits that the Petitioners have failed to provide actual evidence and that constitutional rights cannot be violated in a factual vacuum based on unsupported hypotheses. They urged the Court to dismiss the Petition.
47. The 2 nd Respondent’s Submissions are dated 14 th February 2025 . Counsel submits on two issues being: Whether the Petition discloses any right to relief against the 2 nd Respondent and Whether the 2 nd Respondent is a necessary party to the suit as a Respondent.
48. Counsel submits that the Petition fails to meet the threshold of the Anarita Karimi Njeru Rule in Anarita Karimi Njeru v Republic (No.1)- [1979] KLR 154 and reiterated in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR and Rule 10 of the Mutunga Rules which requires a petitioner to state the facts relied upon, identify the constitutional violation and disclose the nature of the injuries and the reliefs sought. That consequently, a constitutional petition cannot just list generic complaints and the Petitioners herein were required to state with reasonable degree of precision exactly how the DPP violated their rights. The DPP argues that the Petitioners provided zero to nil facts linking them to any violation contrary to the holding of Mativo J. in Leonard Otieno v Airtel Kenya Limited [2018] eKLR .
49. The DPP submits that it is not a necessary party and being that they have been sued as a respondent, there must be a right to relief against them and their presence must be absolutely necessary to resolve the dispute. The DPP argues that they meet neither criterion. They rely on the case of Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] eKLR where Justice Odunga quoted with approval the case of Pravin Bowry vs. John Ward and Another [2015] eKLR, Deported Asians Custodian Board vs. Jaffer Brothers Ltd [1999] 1 E.A. 55 (SCU) as well as Civicon Limited vs. Kivuwatt Limited and 2 Others [2015] eKLR, Kingori vs. Chege & 3 Others [2002] 2 KLR 243 .
50. Counsel for the DPP points out that if this case goes to trial, the DPP is the one who will eventually have to prosecute the actual abductors. That accordingly, keeping the DPP tied up as an adversary in the civil petition damages their ability to independently prosecute the criminals later. They urge that the suit be dismissed against them.
Analysis and Determination
51. Having considered the amended Petition, the affidavits in support and in opposition together with the submissions before the Court, I isolate the following issues for my determination: -
(i) Whether the 2 nd Respondent (DPP) and 5 th Respondent (Sarit Centre) are proper parties to this suit or if they should be expunged.
(ii) Whether the Petition meets the constitutional threshold of specificity and whether the Respondents violated the Petitioners’ constitutional rights as alleged.
(iii) Whether the Petitioners are entitled to the reliefs sought, including financial compensation.
(i) Whether the 2 nd Respondent (DPP) and 5 th Respondent (Sarit Centre) are proper parties to this suit or if they should be expunged.
52. It is a well-established tenet of law that a party should only be joined to a suit if their presence is necessary for the Court to effectively adjudicate over the dispute. This is determined by the pleadings and more importantly by the cause of action being sought from the court and the remedies or reliefs prayed for.
53. The 1 st Petitioner initially sought court orders to force the police to find and produce her kidnapped husband, the 2 nd Petitioner. This prayer subsequently evolved when the 2 nd Petitioner resurfaced. The core of this Petition is therefore a failure to investigate and the alleged complicity of the Respondents in the kidnapping.
54. The 2 nd Respondent the DPP is arguing that they are an improper party to this lawsuit because they have no power to arrest, no connection to the Petitioners’ claims and should therefore be dismissed (expunged) from the case. In their submissions, the DPP argues that the Petitioners failed to provide any legal or factual basis to sue them and that their inclusion in the case is legally improper or that there is a misjoinder. They are asking the Court to officially declare that they are not a proper party to the suit and dismiss them from the proceedings.
55. The office of the 2 nd Respondent the DPP is well established under Article 157 of the Constitution and further enshrined in the Office of the Director of Public Prosecutions Act Cap 6B . In particular, Article 157 states: -
(4) The Director of Public Prosecutions shall have power to direct the Inspector-General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
(5) ______
(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).
56. It follows then that, the 2 nd Respondent is vested with the constitutional mandate to conduct and authorize prosecution of criminal offences. In the present case, none of the Petitioners have pleaded the existence of any ongoing criminal investigations against any of them and particularly the 2 nd Petitioner. It is also the 2 nd Respondent’s Ground of Opposition that they have neither received any formal complaints nor have an active file opened against the 2 nd Petitioner and that they have never had any contact with the 2 nd Petitioner. They assert in their submissions that even the prayers sought in the Petition do not fall within their constitutional and statutory mandates.
57. I have read the prayers sought by the Petitioners together with the grounds in support and it is my finding that not only are the said orders, if granted, not enforceable by the 2 nd Respondent, but that there is also no evidence adduced by the Petitioners to demonstrate that the 2 nd Respondent had participated in the incident that led to this Petition to begin with. There is also no evidence of criminal conduct on the part of the 2 nd Petitioner to warrant an investigation and subsequent forwarding of his file to the DPP for consideration of making the prosecution decision.
58. It is also my finding that the DPP does not command pol
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