https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6880

Wahwai v Inspector General of Police & another (Miscellaneous Criminal Application E063 of 2025) [2026] KEHC 6880 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6880 (KLR) Republic of Kenya In the High Court at Thika Miscellaneous Criminal Application E063 of 2025 FN Muchemi, J May 14, 2026 Between Esther Wambui Wahwai Applicant and Inspector General of Police 1st Respondent Director Of Public Prosecutions 2nd Respondent Ruling Brief Facts 1.The application for determination dated 18th September 2025 seeks for orders of habeas corpus directed towards the respondents to have the body of one Joseph Ng’ang’a Muhia produced before the court within 24 hours of the order that the DCIO Ruiru Police Station be summoned before the court to explain the conclusions reached upon investigations of the fire incident at Modern Furniture Pacific on 18th December 2024; that the investigating officer in charge of the missing persons investigations at Membley Police Post vide OB No. 15/20/12/24 be summoned to explain steps taken in tracing Joseph Ng’ang’a Muhia; that the remains recovered from Modern Furniture Pacific be produced before the court; that the Government Analyst be compelled to produce all results pertaining the unknown burnt human remains found on 26th March 2025 in Gatongora Ruiru and a fresh DNA test be conducted with respect to the unknown human being remains found on 26th March 2025 in Gatongora Ruiru before an independent pathologist, a family pathologist and a government pathologist. 2.The applicant states that she is the mother to Joseph Ng’ang’a Muhia and on 18th December 2024 a fire occurred at Modern Furniture Pacific in Ruiru where her son was employed. She avers that her son was in the said premises at the time of the incident but never made it out of the building on time. The applicant further states that human remains were recovered from the scene by agents or representatives of the respondents however despite several witnesses confirming the said remains were those of a human, the DCIO Ruiru Police Station claims that the remains belonged to a dog. 3.The applicant argues that no forensic reports provided to ascertain whether the claims by the respondents are indeed true despite demanding the same. Further, she made a missing persons report at Membley Police Post vide OB No. 15/20/12/24 but the investigating officer has not been forthcoming with the findings. The applicant states that on 26th March 2025, the DCIO Ruiru Police Station informed her that a burnt human skull was found in Gatongora Ruiru. She further submitted that the specimen from the said skull to the government laboratory on 24th April for DNA testing to confirm whether it belonged to Joseph Ng’ang’a Muhia. However the government chemist report has not been submitted back to the DCIO Ruiru or to the OCS Ruiru. It is further stated that one Stanley Munene Karwana, an employee made a self recorded statement, which has been ignored by the investigating officers. 4.The 1st respondent proceeded with the application by way of viva voce evidence. 5.DW1, Daniel Mutisya situated in DCI Ruiru Office testified that the missing persons report was made at Membley Police Station and that the investigations are still ongoing. The witness stated that that they received a report about the fire that occurred on 18th December 2024 at Modern Furniture Pacific Limited where Joseph Ng’ang’a Muhia was working. He stated that they received a human skull and forwarded the same to the government chemist on 24/04/2025. On 5/11/2025, they received the report in their office and he stated that they are currently compiling the file to hand over to their boss in Kiambu for perusal and advise. The witness stated that the investigations are yet to be finalised. 6.On cross examination, the witness stated that no human matter was forwarded from the scene. However the human skull was found at Gatongora area in Ruiru and it was connected to the fire incident as it was alleged somebody was burnt in the said fire. DW1 further testified that he was not aware that the remains of a dog were sent to the government chemist for analysis. 7.DW2, CI Jane Kabuchwa testified that she is the OCS Membley Police Station in Ruiru. She further testified that on 18/12/2024, she received a distress call from one Patrick, a security officer at Mill Bakers who informed her that there was a fire at Modern Pacific Furniture Ltd. On arrival at the scene, the witness stated that she found two fire brigade vehicles putting out the fire and she embarked on controlling the crowd which had gathered there. DW2 further stated that she was five officers namely IP Patrick Kiiru, CPL Karanja, PC Kaparo and two other constables. The team was later joined by the DCI officers from Ruiru led by CPL Karisa and CSI Officers Thika. 8.DW2 testified that the fire was put out after 9 hours and she handed over the scene to DCI Ruiru to conduct the investigations as it was their responsibility. She further testified that she directed the owner of the shop, Mr. Murage to find out whether all the workers in the furniture shop were accounted for. Mr. Murage informed her that all were accounted for save for Joseph Ng’ang’a who had been on duty of 17/12/2024. 9.The witness further testified that she left the scene but left her officers at the scene to guard it. DW2 later got a call from one of her officers at the scene that they had seen a suspicious burnt object. DW2 testified that she called the DCI team based in Ruiru and they went back to the scene. Upon looking at the remains of the object, they concluded that it looked like a dog’s skeleton which had burnt down. She stated that she left the DCI officers at the scene taking photographs and returned to the office. 10.It was DW2’s evidence that on 20/12/2024, she received a call from IP Kiiru and informed her that a report had been made about a missing person, one Joseph Ng’ang’a by his sister. The witness further testified that she instructed IP Kiiru to circulate the report and open an inquiry file which file was later forwarded to DCI Ruiru in July 2025. DW2 further stated that the file was returned to her in January 2026 with instructions that they cover some points in the investigations. The witness testified that she acted on the file and forwarded the file back to DCI. 11.On cross examination the witness testified that the additional statements recorded were forwarded to DCI The said statements were recorded by her officers at Ruiru Police Station. The witness further testified that the owner of the furniture shop accounted for all his workers except Joseph Ng’ang’a whose phone was unreachable on the material day. The phone number of the said Joseph was tracked by the DCI but she was not aware of the details of the DCI investigations. 12.DW2 testified that the applicant was present at the scene when the photos of the dog like carcass were being taken. 13.DW3 IP Patrick Kiiru testified that he is currently stationed at Wanguru Police Station but he was formerly attached to Membley Police Station as the OC Crime. DW3 testified that on 18/12/2024 he received a distress call from members of the public particularly one Jimmy from Clay works area who informed him that there was a fire at Modern Pacific Furniture Shop. The witness testified that the OCS and himself mobilised five police officers and they rushed to the scene where they found members of the public and a firefighter team from Ruiru subcounty putting out the fire. The witness stated that they were joined by the DCI team Ruiru led by SCCIO Mr. Ndubai, Mr. Sikondi and the owner of the furniture shop, Mr. Murage together with his employees were present. He further testified that Mr. Murage accounted for his employees save for one Joseph Muhia who could not be traced on the phone. 14.DW3 stated that he later received a call from DW2 who informed him that she was informed that suspicious remains had been seen at the scene of the fire. The witness stated that he went back to the scene in the company of five officers and found Mr. Murage who told him that the said remains had been found in the ashes after the fire was put off. DW3 testified that the remains looked like those of burnt dog’s body. He then called DW2 and informed her of the report and what he had seen. DW2 later came to the scene accompanied by the OCS Ruiru and scene of crime personnel from Thika and the DCI team and officers at the scene upon looking at the remains concluded that they were those of a dog. 15.DW3 stated that the investigation team soaked the scene with water and advised them not to interfere with the scene. The investigations were then left to the DCI team Ruiru. DW3 further testified that on 20/12/2024 he received a team from Modern Pacific Furniture shop led by Mr. Murage and Joseph’s sister one Miriam, who reported that Joseph was missing. The witness testified that he recorded the same in OB No. 15 of 20/12/2024 and informed them that he would investigate the matter. He further circulated a signal of a missing person and began recording statements from Miriam who informed him that she had accompanied the DCI team during the removal of the remains and she confirmed that the remains were that of a dog. The witness further testified that he got the phone numbers of Joseph being 0713 384 110 and 0105 040 932 and forwarded them to DCI for forensics analysis. He stated that he got a report that the number 0713 384 110 had been traced on 17/12/2024 at 19.04 hrs within Fort Jesus Wataalam Area within Ruiru being the last time the phone was on. The witness further stated that he obtained CCTV footage of 17/12/2024 at around 18.29 hours when Joseph was seen leaving the Modern Furniture Shop. He stated that he later handed over the police file to the DCI team for further investigations. 16.On cross emanation, the witness testified that he was not the one who called DW2 from the scene to give her the information about the remains. DW3 further stated that he personally examined the remains by looking and confirmed that the remains were of a dog. Further the CCTV footage confirmed that the missing person was on duty that morning and left the premises at around 10.00am. DW3 stated that he could not confirm that the missing person returned to the premises and one Stanley Munene, an employee stated that they were working during night hours. 17.DW3 further testified that he did not visit the Watalaam area after the trace signal and when he liaised with the family members on the location of Joseph’s house, none of them knew where he was living. 18.The 2nd respondent filed a Replying Affidavit dated 19th November 2025 and states a report was made on 26th March 2025 that a skull was recovered within Gatongora Area in Ruiru sub county after a report of the same was made to the police at Gatongora. The said skull was moved to Thika General Kago Funeral home where post mortem was conducted and several exhibits were recovered and forwarded for DNA analysis at the Government Chemist. 19.The respondent states that the investigating officer in the matter escorted the following exhibits for government analysis; headpalet bone and nasal cavity tissues, piece of bone from the right mastoid, piece of the right zygomatic bone, three teeth, soil with multiple pieces of tiny bones from the skull, fire debris and buccal swab from the applicant herein. It was confirmed that the exhibits were received in the Government Chemist, Nairobi on 24th April 2025. It was desired to ascertain whether DNA material extracted from the exhibits forwarded to the government chemist matched DNA material extracted from buccal swab of the applicant herein. 20.The respondent avers that the report of the government analyst dated 21st August 2025 excluded the applicant herein as the biological mother to the donor of the pieces of bones, that is, exhibits escorted to the government chemist. The respondent argues that the government analyst report has cleared the air there are no issues for the court to determine regarding the instant file. 21.Parties put in written submissions. The Applicant’s Submissions. 22.The applicant submits that it is evident that remains were found at the scene however what happened to the remains is a mystery and thus the applicant prays that the remains be presented by the officers to ascertain the same. The applicant further submits that the last officer who conducted the missing person investigation revealed that no investigations were done as he never visited the place where the missing person was according to the phone data. The applicant argues that there is a lot of contradiction from the evidence of the officers who appeared in court which could only mean that the remains found belonged to something they did not want to be discovered or documented which propagates her narrative and that of the witnesses that the remains belonged to her son and not a dog. 23.The applicant argues that the contradictions in the evidence of the various officers are glaring and cannot be ignored as some officers claim no remains were found but others admit that the remains were recovered but were not properly documented or preserved. The applicant further argues that the failure by the police to conduct DNA testing or any scientific identification on the remains raises serious questions of either incompetence or a deliberate attempt to conceal the truth. 24.The applicant submits that despite the recovery of remains at the scene, the police officers from Ruiru and Membley police Stations failed to secure the scene properly, conduct a proper forensic examination or preserve the chain of custody of the said remains which has contributed to the continued disappearance of her son. The applicant relies on Article 25 and 51 of the Constitution and Section 389 of the Criminal Procedure Code to support her submissions. The 2nd Respondent’s Submissions. 25.The 2nd respondent reiterated what she deponed in her replying affidavit. The Law 26.Article 51(2) of the Constitution relates to the rights of persons detained held in custody or imprisoned. It states:-A person who is detained or held in custody is entitled to petition for an order of habeas corpus. 27.Section 389 of the Criminal Procedure Code provides directions on the orders that the High Court may issue regarding pleas for habeas corpus which states:-The High Court may whenever it thinks fit direct-a.that any person within the limits of Kenya be brought up before the court to be dealt with according to law.b.that any person illegally or improperly detained in public or private custody within those limits be set at liberty.c.that any prisoner detained a prison situated within those limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into in that court.d.that any prisoner so detained be brought before a court martial or commissioner acting under the authority of a commission from the President for trial to be examined touching any matter pending before the court martial or commissioners respectively.e.that any prisoner within those limits be removed from one custody to another for the purpose of trial.f.that the body of the defendant within whose limits be brought in on return of cepi corpus to a writ of attachment. 28.The law cited herein that provides for habeas corpus refers to 9 Constitutional remedy under Article 51 (2) of the Constitution used to challenge unlawful detention. An application of habeas corpus aims at challenging unlawful detention requiring the state to produce a detained person before the High Court to justify their incarceration or release them. 29.I have considered the application before me which seeks for orders that : -a.The body of Joseph Ng’ang’a Muhia be produced before the court with twenty four (24) hoursb.The DCIO Ruiru be summoned before the court to explain the conclusions reached in the investigations of the fire incident at Mordern Furniture Pacific Shop on 18th December 2024.c.The investigating officer based in Membley Police Station be summoned to explain steps taken in finding the victim of the fire one Joseph Muhia.d.The remains recovered from Modern Furniture Pacific Shop be produced before the court.e.The Government Chemist be compelled to produce all the results pertaining to the unknown burnt human remains recovered on 26/03/2025 at Gatongora Ruiru and that a fresh DNA test be conducted with respecT to the unknown human being remains found on 26/03/2025 before an independent pathologist. 30.The court summoned the DCIO Ruiru, the OCS Membley and the Investigating Officer to shed light on the mystery surrounding the issues in this application. The officers gave evidence and were cross-examined by the applicant’s counsel and re-examined by 2nd respondent’s counsel. What came out in the evidence of the officers is that the subject one Joseph Ng’ang’a Muhia went missing in the fateful night of the fire at Modern Furniture Shop at Membley where he worked at the material time. He was said to be on duty at the material time. However, it was not confirmed whether he escaped from the fire or whether he was consumed by the said fire. The owner of the burnt premises and the furniture business told the investigators that all his workers were accounted for except the said Joseph Ng’ang’a Muhia. 31.The investigating officer IP Patrick Kiiru said that in the course of their investigations, they obtained a CCTV footage showing the subject leaving the scene of the fire at 18.30 hours. The family of the deceased said that the subject did not return home on the material night following the fire. 32.In Grace Straut Ibingira & Others vs Uganda (1966) EA 447 (CA) at 454 the court held:-The writ of habeas corpus is a writ of right grante ex debito justacine, but it is not a writ of course and it may be refused if the circumstances are such that the writ should not issue. The purpose of the writ is to require the production before the court of a person who claims that he is unlawfully detained so as to ensure his release from custody (unlawful) should the court hold that he is unlawfully restrained. The writ is directed to one or more persons who are alleged to be responsible for the unlawful detention and it is a means whereby the most humble citizen may test the action of the executive government no matter how high the position of the person who ordered the detention. 33.Similarly in Masoud Salim Hemed & Another vs DPP & 3 Others (2014) eKLR the court held:-The general burden in a habeas corpus application must, pursuant to Section 107 of the Evidence Act remain with the petitioner. The petitioner must establish by competent and convincing evidence that the missing person on whose behalf the petition was filed is under the custody of the respondents. 34.Further in Law Society of Kenya & 3 Others vs Attorney General & 2 Others; Independent Policing Oversight Authority (Interested Party) (Constitutional Petition E467 of 2021) [2023] KEHC 26888 (KLR) (Constitutional and Human Rights) (15 December 2023) (Judgment) the court held:-Habeas corpus hence deals with the production of a person who is proved to be in custody of the police or any state agency or is held under the instructions of the state or its agencies. It does not deal with matters of compensation or reparation for the violation of any fundamental rights resulting from the illegal incarceration. 35.The 2nd respondent produced a report from the government analyst dated who conducted a DNA analysis to ascertain whether the DNA material extracted from the exhibits forwarded to the government chemist matched the DNA material extracted from the buccal swab of the applicant herein. From the report of the government analyst dated 21st August 2025, the applicant was excluded as the biological mother to the donor of the exhibits escorted to the government chemist. 36.Prayers 2 and 3 have already been granted in that the DCIO Ruiru and the investigating officer were summoned to court and gave their evidence. As for prayer 3, the report of the Government Chemist Analyst was also produced before the court. Its only prayer 1 that forms the subject of this ruling. 37.Having summarised the evidence and the relevant law herein, I am of the considered view that the main prayer for habeas corpus is a non-starter in that from the evidence of the witnesses, there exists no person or dead body to be produced before this court of the said Joseph Ng’ang’a. The authorities cited herein provide that for the writ of habeas corpus to issue, the applicant must show that the subject is being held in custody, detained or imprisoned as well as that the said custody be identified before the court. 38.It is not in doubt that the investigations on the fire incident and of the missing person have taken over two (2) years before completion. It was not explained why the investigations have taken so long. The family of the missing person must be traumatized by the loss of their person. It is important that the DCIO Ruiru do complete those investigations and bring the matter to a close. If there is evidence to charge any person, this must be done without further delay. 39.In conclusion, the evidence adduced before the court does not support the requirements of an application of habeous corpus as indicated in this ruling and as a result the main prayer fails and is accordingly dismissed. 40.Due to the nature of the application, each party will meet their own costs. 41.It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 14TH DAY OF MAY 2026.F. MUCHEMIJUDGE