[2025] KEHC 16748 (KLR)

Independent Medical Legal Unit & another v Director of Criminal Investigations (DCI) – Nakuru East Sub County & 3 others; Makori (Subject) (Petition E003 of 2025) [2025] KEHC 16748 (KLR) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 16748 (KLR)

Republic of Kenya

In the High Court at Nakuru

Petition E003 of 2025

JM Nang'ea, J

February 6, 2025

Between

Independent Medical Legal Unit

1st Petitioner

Elizabeth Auma

2nd Petitioner

and

Director of Criminal Investigations (DCI) – Nakuru East Sub County

1st Respondent

Officer in Charge Lake Nakuru National Park

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Attorney General

4th Respondent

and

Brian Odhiambo Makori

Subject

Ruling

1. Through this Petition the Petitioners inter alia sought a writ of habeas corpus directing the Respondents to produce the subject (Brian Odhiambo Makori) who was alleged to have been arrested and assaulted by officers working under the 2nd Respondent on 18/1/2025. As at the time of filing this Petition on 21/1/2025 or thereabouts the Subject had not been released or arraigned in court charged with any offence.

2. The court did summon the 1st and 2nd Respondents who appeared in court on 28/1/2025. They did not produce the Subject explaining that he is not in their custody. The 2nd Respondent confirmed arresting around 11 people on 18/1/2025 for trespassing upon Lake Nakuru National Park. One of the suspects who had been arrested separately is said to have fled after he was allowed to relieve himself in the bush. The identity of the suspect had not yet been established and the 2nd Respondent was non-committal as to whether the suspect is the missing person subject of these proceedings. The other 10 arrested suspects were produced in the lower court and charged over the alleged trespass.

3. On his part, the 1st Respondent also swore that the police are unaware of the whereabouts of the Subject. He, however, stated that he is conducting investigations over the disappearance and had recorded statements from officers of the 2nd Respondent reported to have arrested the Subject. The 1st Respondent seemed to be satisfied that the Subject was the one who had been apprehended by the 2nd Respondent’s officers.

4. The 1st Respondent further stated that they conducted an Identification Parade involving the officers suspected to have arrested the subject but witnesses failed to pick them out. Nevertheless, it was recommended to the Director of Public Prosecutions (the 3rd Respondent) to charge 6 officers of the 2nd Respondent with the offence of Abduction in order to Murder Contrary to the provisions of Section 258 of the Penal Code.

5. The basis of habeas corpus application is Article 51(2) of the Constitution. It provides that;A person who is detained or held in custody is entitled to petition for an order of habeas corpus.

6. Article 165 (3) (a) (b) of the Constitution grants this court unlimited jurisdiction to determine a question of whether a right or fundamental freedom under the Bill of Rights, including the right to an order of habeas corpus, has been denied, infringed or threatened. Section 389 of the Criminal Procedure Code goes on to state the orders or directions that the court may give in habeas corpus applications. The orders or directions include requiring any person detained within the limits of Kenya to be dealt with according to the law; that any person illegally or improperly detained in public or private custody be set at liberty and that a prisoner may be ordered removed from one custody to another for purposes of trial.

7. As observed in LSK vs Brian Nzenze & Others [2018] eKLR, the issue of custody is critical before a habeas corpus order is made. It should therefore be shown that the Subject is in the custody of the Respondents.

8. In the case of Masoud Salim Hemed & Another vs DPP & 3 Others [2014] eKLR, it was observed that the general burden of proof in a habeas corpus application must, pursuant to Section 107 of the Evidence Act, remain with the Petitioner. It must therefore be demonstrated that the missing person is under the custody of the Respondents for the court to invoke its constitutional and legal power to order his/her production.

9. The Petitioner’s advocates extensively cross examined the 1st and 2nd Respondents but they maintained that the subject is not in their custody. It boggles the mind how the subject could just disappear into thin air at Lake Nakuru National Park and fail to get home.

10. As the 1st and 2nd Respondents have, however, denied having the subject in their custody and there being no sufficient evidence to the contrary, no further orders or directions will be issued in relation to the habeas corpus application. Let the prosecution process that is underway take its course.

J. M. NANG’EA, JUDGE.RULING DELIVERED THIS 6TH DAY OF FEBRUARY, 2025 IN THE PRESENCE OF:Advocate for the Petitioners, Mr. Yegon for Mr. AbuyaAdvocate for the 1st, 2nd and 4th Respondents, Ms ChepkuruiMs Sang for 3rd RespondentCourt Assistant (Jeniffer)J. M. NANG’EA, JUDGE.