https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7783

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION E385 OF 2022** **IN THE MATTER OF: AN APPLICATION BY AMBREEN KIDWAI ON BEHALF OF MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, AND NICODEMUS MWANIA** **AND** **IN THE MATTER OF: CRIMINAL PROCEDURE (DIRECTIONS IN THE NATURE OF HABEAS CORPUS RULES), 2013** **AND** **IN THE MATTER OF: AN APPLICATION FOR AN ORDER OF HABEAS CORPUS SUBJICIENDUM** **BETWEEN** **AMBREEN KIDWAI……………………………………………………………..……… PETITIONER** **VERSUS** **THE INSPECTOR GENERAL OF POLICE………….……………………..……..1ST RESPONDENT** **NATIONAL POLICE SERVICE COMMISSION………………………………2ND RESPONDENT** **MINISTRY OF INTERIOR…………………………………………………..……….3RD RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTION……………………….…..…...4TH RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS………………………..…..….5TH RESPONDENT** **AND** **SAFARICOM PLC…………………………………………………….....…….1ST INTERESTED PARTY** **AIRTEL LIMITED…………………………………………..…………………..2ND INTERESTED PARTY** **THE ALCHEMIST BAR…………………………………………….………….3RD INTERESTED PARTY** **KENYA NATIONAL HIGHWAYS AUTHORITY……………………..…4TH INTERESTED PARTY** **JUDGMENT** **INTRODUCTION** 1. This is a judgment with respect to both a Constitutional Petition and a Notice of Motion Application both dated 26th July 2022 brought by the Petitioner, Ambreen Kidwai, under Articles 22, 23, 165 and 258 of the Constitution of Kenya, 2010, seeking inter alia the issuance of orders of habeas corpus and ancillary constitutional reliefs arising from the alleged unlawful arrest, abduction, enforced disappearance, and continued incommunicado detention of her husband, Mohammad Zaid Sami Kidwai, together with Zulfiqar Ahmed Khan and Nicodemus Mwania (hereinafter “the subjects”). The Petition invokes the jurisdiction of this Honourable Court on the basis of alleged violations of fundamental rights and freedoms under Articles 25, 27, 28, 29, 31, 35, 39, 47, 49, 50 and 51 of the Constitution, as well as Articles 9 and 10 of the International Covenant on Civil and Political Rights (ICCPR). The Respondents and Interested Parties oppose the Petition on grounds ranging from denial of custody, alleged failure to meet the constitutional threshold of precision and proof, improper joinder, and mootness of the reliefs sought. 2. The Petitioner, Ambreen Kidwai, approaches this Honourable Court alleging that on or about 22nd July 2022, her husband, Mohammad Zaid Sami Kidwai, together with Zulfiqar Ahmed Khan and their driver Nicodemus Mwania, all foreign nationals lawfully present in Kenya on a tourist visit, were subjected to unlawful interception and abduction under circumstances she characterises as enforced disappearance. It is her case that the subjects, having spent the evening at The Alchemist Bar in Westlands after departing Curve by the Park Apartments and Hotel at approximately 10:45 p.m., were thereafter intercepted at about 1:00 a.m. while travelling in motor vehicle registration number KCG 335E (Toyota Fielder) by persons alleged to be police officers. 3. The Petitioner contends that following this interception, communication with the subjects ceased abruptly, their mobile telephones became unreachable, and all subsequent efforts to trace them were unsuccessful. It is further alleged that despite prompt reporting to police stations, including Akila and Parklands Police Stations, and the recording of Occurrence Book entries, the Respondents failed, refused, or neglected to provide any information regarding the whereabouts or custody of the subjects, thereby violating their constitutional rights, particularly under Articles 29, 47 and 49 of the Constitution. 4. The Petitioner relies on CCTV footage allegedly obtained from The Alchemist Bar showing the subjects departing the premises at approximately 12:57 a.m., and further alleges that the motor vehicle was later recovered abandoned near the Ole Sereni area along Mombasa Road with its engine running, and with physical indications said to be consistent with violent interception. She further seeks preservation and disclosure orders in respect of CCTV footage and mobile phone data from Safaricom PLC and Airtel Kenya Limited to establish the last known movements and communications of the subjects. 5. On the basis of the foregoing, the Petitioner alleges that the Inspector General of Police, the National Police Service Commission, the Ministry of Interior, the Director of Criminal Investigations, and the Director of Public Prosecutions are jointly and severally responsible for or complicit in the unlawful arrest, abduction, and continued disappearance of the subjects. She contends that the actions and omissions complained of amount to arbitrary deprivation of liberty, violation of due process, and infringement of non-derogable constitutional rights under Article 25 of the Constitution, as well as international obligations under Articles 9 and 10 of the ICCPR. Reliance is placed inter alia on ***Mohamed Feisal & 19 others v Henry Kandie & others [2018] eKLR*** and ***Standard Chartered Financial Services Ltd v Manchester Outfitters Ltd (2016) eKLR*** on the constitutional protection of fair trial and due process rights, as well as ***Minister of Home Affairs v NICRO (CCT03/04) [2004] ZACC 10*** on the burden of justification in limitation of rights. 6. The Petitioner characterises the claim as a constitutional tort arising from state liability for unlawful deprivation of liberty, relying on ***Kimunai Ole Kimeiwa & 5 others v Joseph Motari Mosigisi & 3 others [2019] eKLR*** and ***John Atelu Omilia & Another v Attorney General & 4 others [2017] eKLR***, and further invokes comparative jurisprudence including Ireland v United Kingdom (1978) and the Greek Case (1969) in support of the proposition that enforced disappearance and prolonged incommunicado detention may constitute torture or inhuman and degrading treatment. 7. The Petitioner thus seeks the following reliefs: 8. ***A Declaration that the Petitioners’ rights under Article 47,50 and 51 of the Constitution have been infringed and violated by the, 2nd ,3rd and 4th Respondents.*** 9. ***A Declaration do issue that the actions and decisions of the Respondent to hold MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, and NICODEMUS MWANIA for more than 24 hours is null, void, and unconstitutional and are in contravention of the provisions of the Constitution of Kenya.*** 10. ***A Declaration that the actions and conduct of the Respondents are contrary to and inconsistent with the provisions of Articles 10 of the Constitution of Kenya, 2010.*** 11. ***A Declaration that the Respondents violated the constitutional rights of the Petitioners and in particular Articles 20(1) and (2), 24(1), 25 (c), 27(4), 29, 31, 39, 47, 49, 50(1) and 51 of the Constitution of Kenya, 2010.*** 12. ***A Declaration be and is hereby issued that all the acts and or threatened acts by the Respondents and their agents of harassment, intimidation, questioning, investigations, charging, prosecution against the MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, and NICODEMUS MWANIA by the Respondents amounts to an infringement against her constitutional rights as enshrined in the Bill of Rights and are therefore unconstitutional.*** 13. ***An Order for adequate compensation for damages for unlawful arrest and incarceration of MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, and NICODEMUS MW ANIA in (a) and (b) above for deprivation of the Constitutional right to freedom of movement and their liberty by the Respondents.*** 14. ***An order compelling the Respondents or any other Officer in charge of the Police in the area within jurisdiction where MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, and NICODEMUS MW ANIA is being held, the officer in charge of any Police Station in the Republic of Kenya holding him or any of them to release MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, and NICODEMUS MWANIA on bail or on such terms and conditions as the court deems fit to grant.*** 15. ***A permanent order restraining the Respondents or any other Officer in charge of the Police in the area within jurisdiction where MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, and NICODEMUS MW ANIA is being held, the officer in charge of any Police Station in the Republic of Kenya holding him or any of them from re-arresting and or detaining MOHAMMAD ZAID SAMI KIDWAI, ZULFIQAR AHMED KHAN, and NICODEMUS MWANIA on similar grounds or similar facts.*** 16. ***Any other or further relief that this Honourable Court shall deem fit by dint of Article 23(3) of the Constitution of Kenya, 2010 and are just to grant in the circumstances.*** ***a) Costs of this Petition be provided for.*** **THE 1ST, 3RD, AND 5TH RESPONDENTS’ CASE** 1. The 1st, 3rd and 5th Respondents oppose the Petition through a Replying Affidavit and submissions by the investigating officer, PC Daniel Opiyo, contending that the allegations of arrest, abduction, or detention are wholly unsubstantiated. It is their case that upon receipt of the missing person report recorded at Akila Police Station under OB16/24/07/2022, immediate investigative action was undertaken, including issuance of police signals to all stations within Nairobi, all of which confirmed that the subjects were not in police custody. 2. It is further deponed that investigations revealed that the subjects had lawfully entered Kenya as tourists and had been residing in various locations before travelling on 22nd July 2022 to The Alchemist Bar, where CCTV and digital records placed them at the premises shortly before their disappearance. The Respondents state that the subjects were last seen leaving the said premises at approximately 0058–0100 hours, after which their phones were switched off, and the motor vehicle was later recovered abandoned near Ole Sereni along Mombasa Road. 3. The Respondents maintain that there is no evidence whatsoever that the subjects were arrested or detained by the police or any state agency, and that immigration records indicate they remain within the jurisdiction of Kenya. Reliance is placed on the constitutional threshold of precision as set out in ***Anarita Karimi Njeru v Republic (1979) KLR 154*** and ***Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR,*** as well as Sections 107 and 109 of the Evidence Act on the burden of proof. 4. It is further submitted that *habeas corpus* is only available where custody by the State is established, and cannot be used as an investigative tool to trace missing persons, reliance being placed on ***KS (Suing as Father and Next Friend of DNS) v Wangusi & 5 others [2023] KEHC 3067 (KLR).*** The Respondents therefore contend that the Petition is misconceived and devoid of evidential basis. **4TH RESPONDENT’S CASE** 1. The 4th Respondent opposes the Petition on the basis that no factual or legal basis has been established against it. It is contended that the Petitioner has failed to demonstrate that the subjects were ever in its custody or that it exercised any control over their arrest, detention, or alleged disappearance. 2. It is the 4th Respondent’s position that its mandate under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act, 2013 is limited to the institution and conduct of prosecutions upon receipt of investigation files from investigative agencies, and that no such file has been presented in respect of the subjects. Accordingly, it is submitted that no prosecutorial decision or action can be attributed to it. 3. Reliance is placed on Sections 107 and 109 of the Evidence Act and on the principle of constitutional precision as articulated in ***Anarita Karimi Njeru v Republic*** and reaffirmed in ***Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR***. It is further contended that no cause of action has been disclosed against the 4th Respondent, rendering its joinder improper. 4. The 4th Respondent therefore seeks to be struck out from the proceedings for misjoinder, relying on Order 1 Rule 10(2) of the Civil Procedure Rules, ***Mbindyo v Ndolo & 3 others [2023] KEHC 3390 (KLR)***, and ***Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR,*** on the principle that a party cannot be retained in proceedings where no relief is sought or legal nexus established. **1ST INTERESTED PARTY’S CASE** 1. The 1st Interested Party submits that its role in the proceedings was purely technical, limited to the provision of call data records relating to Nicodemus Mwania’s registered mobile number, which it duly supplied pursuant to court directions. It asserts that it has fully discharged its mandate and has no continuing role in the matter. 2. On the substantive issues, it is submitted that the central question is whether the *habeas corpus* relief sought remains viable in light of intervening criminal proceedings involving police officers alleged to be connected to the disappearance of the subjects. Reliance is placed on the Supreme Court decision in ***Muriithi v Janmohamed SC [2023] KESC 61,*** which affirms that *habeas corpus* is intended to secure judicial inquiry into the legality of detention where custody is established. 3. Further reliance is placed on ***Masoud Salim Hemed & Okiya Omtatah Okoiti v DPP & others [2014] KEHC 3393*** and ***Mohamed & another (In respect of Mohamed Abdulmalik) v Commissioner of Police [2007] KEHC 229***, to the effect that *habeas corpus* cannot issue where respondents are not in custody of the subject or where such custody is not established, as courts do not act in vain. 4. It is however acknowledged that the question of whether there was unlawful detention beyond the constitutional 24-hour limit remains a justiciable constitutional issue under Article 49 of the Constitution. **4TH INTERESTED PARTY’S CASE** 1. The 4th Interested Party (Kenya National Highways Authority) seeks to be struck out from the proceedings on the basis that it has no legal, factual, or procedural connection to the dispute. It is a statutory body established under the Kenya Roads Act, 2007, whose mandate is limited to the development and maintenance of national roads, and it does not exercise any investigative, policing, or prosecutorial functions. 2. It is contended that the Petition discloses no allegations, reliefs, or legal claims against it, and that its inclusion is therefore improper. Reliance is placed on Order 1 Rule 10(2) of the Civil Procedure Rules***, Mbindyo v Ndolo & 3 others [2023] KEHC 3390 (KLR),*** and ***Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR,*** on the requirement that a party must demonstrate a legal interest or stake in proceedings to warrant joinder. 3. Further reliance is placed on ***Joseph Njuguna Mwaura & 2 Others v Republic [2013] eKLR and Aliun Dena v Attorney General & Another [2021] eKLR***, for the principle that courts will strike out improperly joined parties where no cause of action is disclosed against them. 4. Accordingly, the 4th Interested Party prays that its name be struck out from the proceedings with costs. **ANALYSIS AND DETERMINATION** 1. Upon consideration of the pleadings, affidavits, written submissions, and authorities placed before this Honourable Court by the parties, he Court is of the view that the following issues commend themselves for determination: 2. ***Whether the Petition met the required threshold of a constitutional petition.*** 3. ***Whether the constitutional threshold for a habeas corpus application was met.*** 4. ***Whether the 4th Respondent was properly joined to the proceedings.*** 5. ***Whether the Petitioners are entitled to Reliefs as sought.*** **Whether the Petition met the required threshold of a constitutional petition.** 1. The Court must first determine whether the Petition satisfies the constitutional threshold of a competent petition, a question that goes to the admissibility and juridical competence of these proceedings at their inception. The Respondents contend that the Petition offends the settled principles articulated in the locus classicus ***Anarita Karimi Njeru v Republic supra*** and reaffirmed in ***Mumo Matemu v Trusted Society of Human Rights Alliance***, on account of want of precision in constitutional pleadings as required by law. 2. The jurisprudence distilled from the foregoing authorities establishes that the requirement of precision in constitutional litigation is not an end in itself, nor a pedantic insistence on form, but a functional standard of clarity. The applicable inquiry is whether a petition, read as a whole, discloses with reasonable clarity the constitutional provisions alleged to have been infringed, the manner and context of the alleged infringement, and the nature of the grievance so as to constitute an intelligible constitutional dispute capable of response and adjudication. The test is therefore one of sufficiency of clarity, not perfection of pleading. 3. Put differently, a constitutional petition will meet the threshold if it is reasonably intelligible, such that the Court is able to discern the nature of the complaint and the respondent is able to understand the case it is called upon to answer. The guiding consideration is whether the pleadings, taken holistically, disclose a justiciable constitutional controversy rather than a vague or generalized grievance. 4. Applying that standard to the present Petition, this Court is unable to fully accede to the Respondents’ contention that it is fatally defective for want of precision. The Petition identifies, with appreciable clarity, the constitutional provisions alleged to have been violated, including Articles 25, 29, 47, 49, 50 and 51 of the Constitution. It further sets out the factual matrix upon which the alleged violations are founded, namely the alleged disappearance of the subjects following an asserted interception by persons believed to be police officers, the failure by State agencies to account for their whereabouts, and the alleged denial of due process safeguards. 5. In the premises, the Court is satisfied that the Petition meets the requisite threshold of constitutional precision. Any perceived deficiencies do not go to the competence or admissibility of the Petition itself, but rather to matters that properly fall for consideration under the evidentiary inquiry and the substantive merits of the alleged violations **Whether the constitutional threshold for a *habeas corpus* application was met.** 1. Turning to the second issue which forms the gravamen of the Petition before this Court is that the subjects herein, namely Mohammad Zaid Sami Kidwai, Zulfiqar Ahmed Khan, and Nicodemus Mwania, were unlawfully arrested, abducted, and detained by agents of the State on or about the night of 22nd July 2022, and that their continued disappearance constitutes a grave violation of the Constitution of Kenya, 2010. The Petitioner consequently urges this Court to invoke its jurisdiction under Articles 22, 23 and 165 of the Constitution and to issue orders in the nature of *habeas corpus* compelling the Respondents to produce the subjects before Court and account for their whereabouts. 2. At the outset, it is necessary to restate the constitutional character and juridical purpose of the writ of *habeas corpus*. The writ occupies a sacrosanct and historically revered place within constitutional democracies founded upon the rule of law. It remains one of the oldest and most efficacious judicial safeguards against arbitrary detention, executive excess, and unlawful deprivation of liberty. Its central object is the immediate protection of personal liberty through judicial inquiry into the legality of detention. 3. The Supreme Court in ***Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC*** underscored that the essence of *habeas corpus* is to secure the production before Court of a person alleged to be unlawfully detained so as to facilitate judicial examination of the legality of such detention. Equally, in ***Masoud Salim Hemed & Okiya Omtatah Okoiti v Director of Public Prosecutions & Others***, the Court reiterated that the writ is directed against unlawful restraint and presupposes proof, or at the very least credible evidence, that the subject is in the custody or control of the respondent against whom the writ is sought. 4. The jurisprudence emerging from comparative common law jurisdictions and international human rights law demonstrates that the grant of *habeas corpus* relief is governed by three interrelated and mutually reinforcing principles. First, the applicant must establish a prima facie basis that the subject is missing or has been deprived of liberty. Secondly, there must exist reasonable and credible material connecting the disappearance or detention to the respondent against whom the writ is sought. Thirdly, the Court must be satisfied that the respondent is capable of producing the subject before Court or otherwise accounting for his or her whereabouts. Absent those foundational elements, the writ cannot issue. 5. The first principle was articulated in ***Masoud Salim Hemed & Okiya Omtatah Okoiti v Director of Public Prosecutions & Others*** where the Court, adopting with approval the Philippine decision in **MA Estrelita Martinez v Director General,** observed that *habeas corpus* exists to relieve against unlawful restraint and cannot issue in the abstract. The remedy is therefore not investigative in nature, it is remedial and coercive, directed at a respondent shown to exercise actual, constructive, or inferential custody over the subject. 6. The second principle, namely the requirement of demonstrable evidentiary linkage between the alleged detention and the respondent, is particularly decisive in the present matter. In ***Mohamed & Another (In respect of Mohamed Abdulmalik) v Commissioner of Police & Another,*** the High Court declined to issue *habeas corpus* where the respondents no longer exercised custody over the subject and where compliance with the writ had become impossible. The Court correctly observed that courts of law do not issue orders in vain and that the efficacy of the writ depends upon demonstrable custodial control. 7. Similarly, in ***KS (Suing as Father and Next Friend of DNS) v Wangusi & 5 Others***, the Court clarified that *habeas corpus* proceedings are not intended to operate as generalized investigative processes into disappearances where State custody remains speculative or unproven. The Court observed that where custodial responsibility is uncertain, the matter may more appropriately fall within the province of criminal investigations, commissions of inquiry, or inquest proceedings. 8. Custody for purposes of *habeas corpus* may be actual, constructive, or de facto control, including situations where a respondent is shown to exercise effective control over the liberty of the subject, whether directly or through agents. However, constructive custody cannot be presumed solely from disappearance occurring in suspicious circumstances absent additional evidentiary indicators linking the respondent to control, detention infrastructure, or identifiable operational conduct. 9. This Court is therefore persuaded that the applicable legal test in *habeas corpus* proceedings is not merely whether a disappearance has occurred, for that may well be undisputed, but whether there exists sufficient material upon which the Court can reasonably draw an inference of actual or constructive custody that the respondent has actual, constructive, or inferential custody over the subject. Mere suspicion, conjecture, public anxiety, or even strong probability cannot alone suffice. The writ, though protective of liberty, remains judicial in character and must therefore operate within ascertainable evidentiary limits. The existence of disappearance, even if established, does not ipso facto establish custodial responsibility. 10. The Petitioner has urged this Court to infer State responsibility from circumstantial facts, including the abrupt disappearance of the subjects, the alleged interception of their vehicle shortly after departing The Alchemist Bar, the cessation of communication, and the subsequent recovery of the motor vehicle abandoned near Ole Sereni along Mombasa Road. Those circumstances undoubtedly raise grave constitutional and public concern. Indeed, the subsequent institution of criminal proceedings against certain police officers in separate proceedings lends considerable seriousness to the allegations raised before this Court. 11. However, the issue presently falling for determination is narrower and more precise, whether, on the evidentiary material presently before Court, it can properly be concluded that the Respondents are in custody or control of the subjects so as to justify issuance of orders of *habeas corpus*. 12. Regrettably, the answer must be in the negative. 13. The Respondents have consistently denied that the subjects were ever arrested, detained, or otherwise held by the police or any State agency. Through the Replying Affidavit sworn by PC Daniel Opiyo, the 1st, 3rd and 5th Respondents exhibited occurrence book records, police signals circulated to stations within Nairobi County, immigration records, investigative reports, CCTV tracing efforts, and mobile data analysis, all in support of their position that the subjects were reported as missing persons rather than persons in police custody. They further averred that no police station within Nairobi reported having custody of the subjects and that investigations were commenced precisely because their whereabouts remained unknown. 14. More critically, no direct evidence was placed before this Court identifying the alleged abductors as police officers or agents of the State. No witness affidavit identifies any of the Respondents as participants in the alleged interception. No CCTV footage capturing the alleged abduction was tendered. No telephone records, geolocation data, police deployment logs, forensic evidence, or independent material linking the Respondents to actual custody were produced. The Petition therefore rests substantially upon inference and suspicion drawn from surrounding circumstances. 15. The Court has carefully considered the cumulative effect of the circumstances relied upon by the Petitioner, including the last known location of the subjects at a public establishment, the timing of their disappearance shortly thereafter, the alleged interception of their vehicle, and its subsequent recovery abandoned along a major highway. While these factors are not individually determinative, the Court has evaluated whether, taken together, they meet the threshold of a coherent evidentiary chain pointing towards custody by or on behalf of the Respondents. The Court finds that, even when assessed cumulatively, the evidentiary chain remains incomplete and does not reach the threshold of a reasonable inference of actual or constructive State custody. 16. The Court is mindful that in cases of alleged enforced disappearance, direct evidence of custody is rarely available to petitioners, and proof is often necessarily inferential. The Court is therefore enjoined to consider whether the totality of circumstantial evidence, taken cumulatively and not in isolation, may give rise to a reasonable inference of custody or State involvement. However, such inference must be anchored on cogent and converging indicators rather than speculation or sequential assumptions. 17. This Court readily accepts that enforced disappearance constitutes one of the most egregious violations of human rights under both constitutional and international law. The authorities cited by the Petitioner, including jurisprudence arising under the International Covenant on Civil and Political Rights, as well as comparative authorities such as **The Greek Case** and **Ireland v United Kingdom, correctly** underscore the gravity with which civilized legal systems regard arbitrary deprivation of liberty and disappearance at the hands of State actors. Enforced disappearance strikes simultaneously at the rights to liberty, dignity, security of the person, fair trial, family life, and, in certain circumstances, even the right to life itself. 18. Nevertheless, before those constitutional and international principles can be invoked against a respondent in judicial proceedings, there must first exist credible evidentiary linkage between the alleged violation and the conduct of the respondent sought to be held accountable. Constitutional condemnation cannot be founded upon assumption. Courts of law are institutions of evidence and principle, not suspicion. Grave allegations, particularly against State agencies entrusted with constitutional authority, require correspondingly cogent evidentiary foundation. 19. The Supreme Court in ***Wamwere & Others v Attorney General*** reaffirmed that constitutional litigation does not displace the ordinary burden of proof under Sections 107 and 109 of the Evidence Act. A petitioner alleging constitutional violation bears the obligation of establishing, on a balance of probabilities, the factual basis upon which the alleged infringement rests. Equally instructive is the decision in ***Lt Col Peter Ngari Kagume & Others v Attorney General [2016] eKLR*** where the Court held that allegations of unlawful detention, however grave, must be supported by tangible evidence and not merely by assertion. 20. The Court further notes the argument that in cases of alleged enforced disappearance, comparative human rights jurisprudence has in certain instances recognised a shifting evidential burden once a petitioner establishes a prima facie case of disappearance in suspicious circumstances. However, the application of such principle remains contingent upon the establishment of an initial evidentiary foundation linking the State to the alleged deprivation of liberty, which is absent in the present case 21. Courts must also guard against transforming *habeas corpus* proceedings into speculative commissions of inquiry. The writ is designed to compel production of a person demonstrably in custody, not to determine, in the first instance, who may have abducted a missing person. As was observed in ***Masoud Salim Hemed & Okiya Omtatah Okoiti v Director of Public Prosecutions & Others*** ***supra,*** *habeas corpus* is not designed to function as a primary investigative mechanism into disappearances where custody has not been established, although in appropriate cases it may incidentally require the State to account for persons already shown to be within its custody or control. 22. Accordingly, although the disappearance of the subjects presents deeply troubling circumstances deserving the fullest investigative attention by competent State agencies, this Court is unable, on the basis of the material presently before it, to conclude that the Respondents exercise actual or constructive custody over the subjects so as to warrant issuance of coercive *habeas corpus* orders. The Petition establishes disappearance, it does not establish custody. In the absence of proof, whether direct or inferential, that the Respondents presently exercise actual or constructive custody over the subjects, the constitutional threshold necessary for issuance of orders of *habeas corpus* has not been attained. **Whether the 4th Respondent was properly joined to the proceedings** 1. The Court must further address the question whether the 4th Respondent and the 4th Interested Party were properly joined to these proceedings. 2. As regards the 4th Respondent, namely the Director of Public Prosecutions, the Petition contains generalized allegations against all Respondents collectively but fails to demonstrate any specific prosecutorial action, omission, directive, or decision attributable to that office. Under Article 157 of the Constitution, the mandate of the Director of Public Prosecutions is prosecutorial rather than investigative or custodial. No evidence was placed before Court demonstrating that the 4th Respondent exercised control over the arrest, detention, disappearance, or prosecution of the subjects. The mere fact that constitutional reliefs are sought against multiple State agencies does not obviate the requirement that a nexus be established between the impugned conduct and the constitutional mandate of each respondent. 3. This Court is persuaded by the reasoning in ***Mbindyo v Ndolo & 3 Others and Joseph Njuguna Mwaura & 2 Others v Republic*** that parties against whom no discernible cause of action is disclosed ought not to be unnecessarily retained in proceedings. The Petition discloses no substantive prosecutorial decision capable of constitutional challenge against the 4th Respondent. Consequently, the joinder of the 4th Respondent was improper. 4. Similarly, with respect to the 4th Interested Party, namely the Kenya National Highways Authority, this Court finds no legal or factual basis warranting its continued participation in these proceedings. The Petition neither attributes any wrongful conduct to the said entity nor seeks any substantive relief against it. Its mention in relation to possible CCTV footage from the Nairobi Expressway does not suffice to confer upon it a legal stake in the dispute. The principles governing joinder of interested parties were succinctly articulated by the Supreme Court in ***Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others supra***, namely that an interested party must demonstrate a clearly identifiable stake or legal interest in the proceedings. No such stake or legal interest has been demonstrated in the present matter. 5. In the result, this Court finds that the 4th Interested Party was improperly joined and ought to be struck out from the proceedings. 6. In conclusion therefore, while this Court acknowledges the grave and deeply troubling circumstances surrounding the disappearance of the subjects herein, and while the Constitution imposes upon the State an unqualified duty to protect life, liberty, dignity, and security of all persons within Kenya, judicial remedies must nonetheless issue within the confines of established constitutional and evidentiary principles. The Petition raises serious concerns deserving continued investigative attention by competent State agencies. However, the evidentiary threshold necessary for issuance of orders of *habeas corpus* against the Respondents has not been attained. 7. In the final analysis, this Court is not unmindful of the profound anguish, uncertainty, and distress that inevitably accompanies the unexplained disappearance of persons under circumstances suggestive of foul play. The disappearance of the subjects herein raises grave constitutional and human rights concerns which, in any democratic society governed by the rule of law, cannot be treated lightly. The Constitution of Kenya, 2010 imposes upon the State an enduring obligation to protect life, dignity, liberty, and security of the person, and allegations of enforced disappearance demand thorough, prompt, independent, and effective investigation by all competent agencies of the State. 8. However, the solemn duty of this Court is to determine disputes on the basis of law and evidence. The jurisdiction to issue orders of *habeas corpus*, though broad and jealously guarded as a safeguard of liberty, is not exercised in vacuo. It is exercisable only where the factual and evidentiary foundation necessary to establish custody or control by the respondent has been sufficiently laid before the Court. The Court cannot, consistent with constitutional principle and the administration of justice, issue coercive judicial orders founded upon conjecture, suspicion, or public anxiety, however grave the surrounding circumstances may appear. Judicial remedies must therefore be grounded in evidentiary sufficiency rather than suspicion, however compelling the surrounding narrative may appear. 9. The Court emphasises that dismissal of the Petition on evidentiary grounds does not amount to a finding that the allegations are unfounded in fact. It merely reflects the Court’s inability, on the material presented, to meet the constitutional threshold for issuance of coercive orders in the nature of *habeas corpus.* 10. This Court has found that while the Petition discloses serious allegations deserving continued investigative attention, and while the disappearance of the subjects remains deeply troubling, the evidentiary threshold necessary to sustain the extraordinary remedy of *habeas corpus* has not been met. The Petition establishes disappearance, it does not establish, to the standard required in law, that the Respondents are in custody or control of the subjects. In those circumstances, the Court is constrained to decline the reliefs sought. 11. The Court has reached this conclusion strictly on the basis of evidentiary sufficiency for the remedy sought, and not on a determination of the factual truth of the alleged events 12. Accordingly, and for the reasons set out in this Judgment, the Court now makes the following orders: 13. The Petition and the Notice of Motion Application both dated 26th July 2022 are hereby dismissed for lack of merit. 14. The prayers seeking issuance of orders in the nature of *habeas corpus* compelling the Respondents to produce Mohammad Zaid Sami Kidwai, Zulfiqar Ahmed Khan, and Nicodemus Mwania before this Court are hereby declined. 15. The name of the 4th Respondent be and is hereby struck out from these proceedings for misjoinder, no specific cause of action having been disclosed against that office. 16. The name of the 4th Interested Party, Kenya National Highways Authority (KeNHA), be and is hereby struck out from these proceedings for improper joinder. 17. In view of the nature of the proceedings and the constitutional questions raised, each party shall bear its own costs. Orders accordingly. File closed accordingly. **DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY 2026.** **………………………………….** **BAHATI MWAMUYE MBS** **JUDGE.** In the presence of: Counsel for the Petitioner- Ms. Muthoni h/b Mr. Cohen Amanya Counsel for the 1st, 2nd, and 3rd Respondents – Ms. Rukiyah Counsel for the 4th Respondent – Mr. Mulati h/b Mr. Maatwa Counsel for the 1st Interested Party – Mr. Ong’wen Counsel for the 4th Interested Party – Mr. Mugo Court Assistants - Mr. Martin Mwenda and Mr. Austin