https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12656

Mackenzie v Officer in Charge, Shimo La Tewa Maximum Security Prison (Petition E039 of 2025) [2026] KEHC 12656 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12656 (KLR) Republic of Kenya In the High Court at Mombasa Petition E039 of 2025 J Ngaah, J August 7, 2026 Between Paul Nthenge Mackenzie Petitioner and The Officer in Charge, Shimo La Tewa Maximum Security Prison Respondent Ruling Introduction 1.The application before the court is the Notice of Motion dated 22nd September 2025, brought under Articles 2, 10, 19, 20, 22, 23, 25(a), 28, 29, 33, 47, 50 and 51 of the Constitution, sections 1A, 1B, 3A and 63(C) & (E) of the Civil Procedure Act, cap. 21 and Order 51 of the Civil Procedure Rules. The Applicant, who is the Petitioner in the main Petition, seeks the following substantive orders:a.That, pending the hearing and determination of the Petition, the court do issue an order restraining the Shimo La Tewa Prison authorities from subjecting the Applicant to isolation, torture or inhuman treatment;b.That the Officer in Charge of Shimo La Tewa Prison be directed to file a formal report before the court detailing the treatment, security arrangements and welfare of the Applicant while in custody;c.In the alternative, that the court order the immediate transfer of the Applicant to another prison facility; andd.That the costs of the application be provided for. 2.Although couched as prayers for interim relief, these are, in substance, applications for conservatory orders in a constitutional petition, and I approach them as such. The applicant's case 3.The Motion is premised on grounds on its face and is supported by the affidavit of Lawrence Obonyo Omondi, learned counsel for the Applicant, sworn on 22nd September 2025. The Applicant's case, in summary, is as follows. 4.The Applicant is in lawful custody at Shimo La Tewa Maximum Security Prison, facing charges of terrorism and radicalisation and related offences before the Chief Magistrate's Court at Shanzu (Criminal Case No. E085 of 2024), together with charges of manslaughter before the High Court at Malindi (Criminal Case No. E003 of 2024) and before the Magistrate's Court at Mombasa (Criminal Case No. E112 of 2024). Copies of the charge sheets are have been exhibited to Obonyo’s affidavit. 5.It is deposed that, while in custody, the Applicant has been subjected to mistreatment and deliberate acts of cruelty by prison wardens, including being placed in isolation, being denied human association and exposure to sunlight, being served with food containing glass particles, and being threatened that iron sheets (mabati) would be welded across the windows of his cell. These acts, it is contended, amount to torture and to cruel, inhuman and degrading treatment contrary to Articles 25(a), 28, 29 and 51 of the Constitution. The Applicant states that he reasonably fears for his life and that, unless urgent orders are issued, he stands to suffer irreparable harm, including possible loss of life. 6.In submissions, the Applicant contends that once a prima facie case of a constitutional violation is shown, the evidential burden shifts to the Respondent; that the Respondent's annextures (the internal intelligence and risk-assessment reports, inventory of recovered items, hunger-strike register and photographs) are uncertified, unsigned, lack authentication and a chain of custody, and are therefore of no evidential value; that the Applicant's classification as "high risk" was arrived at without notice, hearing or written reasons contrary to sections 4 to 6 of the Fair Administrative Action Act; that Article 25(a) is a non-derogable right which cannot be limited in any circumstances; and that, pursuant to section 30 of the Persons Deprived of Liberty Act, 2014, a person deprived of liberty may be transferred where his health, safety or well-being is threatened. The Applicant relies, among others, on Anarita Karimi Njeru v Republic [1979] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, and a body of authority affirming the absolute prohibition of torture. The respondent's case 7.The Motion is opposed through the Replying Affidavit of Abdiwilly Hassan Adan (CP), the Officer in Charge of Shimo La Tewa Maximum Security Prison, sworn on 10th November 2025 and filed by the Hon. Attorney General. The Respondent's case, in summary, is as follows. 8.The prison is a gazetted facility under the Kenya Prisons Service, established under the Kenya Prisons Act (Cap 90), whose officers are bound by the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules). The Applicant is lawfully held while facing charges under the Prevention of Terrorism Act. 9.The Respondent asserts that the Applicant's placement is not arbitrary "isolation" but a lawful, supervised and restrictive regime of segregation, undertaken pursuant to section 36A(1) of the Prisons Act (which permits terrorism detainees to be held apart from other prisoners) and section 56 of the Prisons Act (which permits the Officer in Charge to segregate a prisoner where it is desirable for the good order and discipline of the prison). The decision is founded on a documented risk assessment produced through the prison's Internal Security Information Reporting system and inter-agency co-operation with the Directorate of Criminal Investigations. That assessment classifies the Applicant as a “high-risk offender” with a high risk of re-offending and of radicalising and recruiting others, and recommends that he be separated from others and monitored. 10.In support of the security rationale, the Respondent deposes and exhibits material to the effect that: prohibited items, three SIM cards and two mobile handsets, were recovered from the Applicant's and a co-accused's cells during a search conducted under a court order and handed over to the Directorate of Criminal Investigations; the Applicant instructed his co-accused, both men and women, to observe an indefinite hunger strike; he attempted to preach to co-accused persons while on the prison bus in transit to court; and officers have intercepted written scripts channelled to him by co-accused persons bearing extreme messages for his interpretation. The Respondent further exhibits correspondence from the Directorate of Criminal Investigations confirming ongoing investigations into the mass deaths in the Shakahola and Binzaro area of Malindi Sub-County, in which the Applicant features. 11.As to the specific allegations of ill-treatment, the Respondent deposes that the Applicant is held in a suitable, well-ventilated cell with natural and artificial light, mattresses, blankets, clothing and sanitation, in an aerated area with open space for sunbathing and exercise; that all food is inspected on delivery, prepared collectively for all inmates by vetted inmate cooks under officers' supervision, and that no special food leaves the kitchen for any individual inmate; that it is not feasible for a prisoner to carry glass particles from the prison to court, all prisoners being searched on leaving the facility; and that the allegations are fabricated and are, in truth, an attempt to secure preferential treatment and to intimidate officers from searching the Applicant's cell. The Respondent contends that transfer would be illogical, Shimo La Tewa being a designated facility for terrorism detainees and being proximate to the courts before which the Applicant is being tried, and that the application is speculative, premature and does not meet the threshold for the orders sought. 12.In submissions, the Respondent relies on the settled tests for interim relief in Giella v Cassman Brown & Co Ltd [1973] EA 358, Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, and on the principle in Films Rover International Ltd v Cannon Films Sales Ltd [1986] 3 All ER 772 that the court should adopt the course carrying the lower risk of injustice. It is urged that the Applicant has established neither a prima facie case nor irreparable harm; that the balance of convenience and public interest favour the Respondent; and that the orders sought mirror the reliefs in the Petition itself, such that granting them would dispose of the Petition at an interlocutory stage. Issues for determination 13.Having considered the pleadings, the affidavits, the annexures, and the rival submissions, the single question for determination is whether the Applicant has established a basis for the grant of conservatory orders pending the hearing and determination of the Petition. 14.That question resolves into the familiar sub-inquiries governing conservatory orders: whether a prima facie case with a likelihood of success has been shown; whether the Applicant will suffer prejudice, or the Petition be rendered nugatory, if the orders are declined; and where the public interest lies. Analysis and Determination (i) The principles governing conservatory orders 15.It is now settled that conservatory orders are not to be equated with ordinary interlocutory injunctions and are not governed strictly by the Giella v Cassman Brown criteria. They bear a distinctly public-law character. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR held that conservatory orders are granted upon the inherent merit of a case, with a bias in favour of the protection and enforcement of the Bill of Rights, and having regard to the public interest, the constitutional values at stake, and the proportionate magnitudes and priority levels attributable to the competing claims. 16.The considerations were distilled in Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR, where the court held that an applicant for a conservatory order must demonstrate: (a) an arguable prima facie case with a likelihood of success and that, in the absence of the order, he is likely to suffer prejudice; (b) that the grant or denial of the order will enhance the constitutional values and objects of the specific right or freedom in the Bill of Rights; (c) that, if the order is not granted, the petition alleging violation of, or threat of violation of, rights would be rendered nugatory; and (d) the public interest. To like effect are Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR and Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR. 17.Two related propositions must be kept in view. First, at this stage the court does not conduct a mini-trial and does not finally weigh conflicting evidence or determine contested questions of admissibility; it examines whether, on the face of the material, the Applicant has a case that is not frivolous and deserves to go to a full hearing (see Nguruman Limited (supra) and Mrao Ltd (supra), whose reasoning on prima facie case is instructive across both interlocutory injunctions and conservatory orders). Secondly, a conservatory order is intended to preserve the status quo pending determination of the petition; it should not, save in the clearest of cases, be moulded so as to grant in advance the very reliefs sought in the petition. (ii) A preliminary observation on the supporting affidavit 18.Before turning to the merits I note a matter that bears on the weight of the Applicant's material. The affidavit in support of the Motion is sworn not by the Applicant but by his advocate. While Order 19 rule 3 of the Civil Procedure Rules permits, on interlocutory applications, statements of information and belief, it requires the deponent to disclose the sources and grounds of that belief. The averments of mistreatment, isolation, contaminated food, denial of sunlight, and threats, are matters peculiarly within the Applicant's own knowledge and not that of his counsel, yet the affidavit discloses no source for them. This does not render the affidavit incompetent, but it materially diminishes the weight to be attached to those averments at this stage. I note that both parties refer, in their submissions, to a Supplementary Affidavit said to have been sworn by the Applicant on 20th November 2025; to the extent it forms part of the record, it is considered, but it does not cure the essential evidential difficulty identified below. (iii) Whether a prima facie case with a likelihood of success has been shown 19.There is no dispute, and there can be none, that the freedom from torture and from cruel, inhuman or degrading treatment guaranteed by Article 25(a) is among the non-derogable rights that may not be limited under Article 29 and Article 51, and that a person in custody retains all fundamental rights and freedoms save those clearly incompatible with the fact of detention. The authorities cited by the Applicant establish this settled principle. The difficulty for the Applicant does not lie in the law; it lies in whether the treatment complained of has been shown, even to the prima facie standard, to cross the threshold of the conduct which the law prohibits.The complaint has two distinct limbs, and they must be treated separately. 20.The fact of segregation. The gravamen of the Motion is that the Applicant has been placed in "isolation". The Respondent does not deny that the Applicant is held in a restrictive, segregated regime. But the Respondent has demonstrated, on the face of the record, a lawful statutory basis for that regime, sections 36A and 56 of the Prisons Act, supported by a documented risk assessment and by contemporaneous material evidencing the security concern (the recovery of communication devices, the hunger-strike instruction, the intercepted scripts, and the active DCI investigation). Segregation lawfully imposed on a high-risk terrorism detainee, for the good order of the institution and the safety of other inmates and the public, is not, in itself, torture or cruel, inhuman or degrading treatment. The Mandela Rules themselves contemplate segregation and restriction, prohibiting only prolonged or indefinite solitary confinement and confinement without meaningful human contact. The Applicant has not, at this stage, laid a foundation to show that his segregation has crossed into that prohibited territory, the material before me does not establish the duration, the conditions, or the absence of review and human contact with the precision required to raise a prima facie case that the segregation is, in itself, unconstitutional. 21.The alleged affirmative acts of ill-treatment. The allegations of glass particles in food, denial of sunlight, and threats to weld iron sheets across the cell windows are, if established, grave. But they rest, on the record before me, on assertion unsupported by the Applicant's own sworn and particularised account, and unsupported by any medical report, photograph, occurrence-book entry, or independent material. The Respondent, by contrast, has given a specific and coherent answer: the food is prepared collectively and inspected, no individualised food is delivered, and the Applicant controls no part of the kitchen; the cell is described and photographed as ventilated and lit, with access to open space; and the allegations are said to be neither particularised as to who threatened the Applicant, nor when, nor where. In these circumstances I cannot say that a prima facie case of targeted ill-treatment, with a likelihood of success, has been established at this interlocutory stage. 22.I have not overlooked the Applicant's submission that the "burden shifts" once a prima facie case is shown, and that the Respondent's annexures should be disregarded as unauthenticated. As to the first, the burden shifts only after the threshold prima facie case is crossed; for the reasons given, it has not been. As to the second, questions of certification, authentication and the chain of custody of the Respondent's documents are matters for the full hearing; they are not to be finally determined on this Motion, and it would be inconsistent for the court to reject the Respondent's documented material as untested while accepting, at face value, the Applicant's untested and largely un-particularised assertions. The Applicant's argument that his high-risk classification was arrived at in breach of the right to fair administrative action is a serious and arguable contention, but it is a contention properly belonging to the substantive Petition, and it does not, of itself, establish that the Applicant faces the kind of imminent, irreparable harm that conservatory relief exists to arrest. 23.On the first limb of the test, therefore, the Applicant has not established a prima facie case with a likelihood of success sufficient to warrant the conservatory orders sought. (iv) Irreparable harm and whether the petition would be rendered nugatory 24.An applicant must show that, absent the order, he is likely to suffer prejudice that cannot be remedied, or that the Petition would be rendered nugatory. The apprehension must be more than speculative; it must be actual, substantial and demonstrable (see Nguruman Limited (supra)). 25.The Applicant deposes to a fear for his life and to a risk of irreparable harm. Yet no evidence has been placed before the court that his health has deteriorated, that he has sought or been denied medical intervention, or that he has reported the grave allegations, some of which would border on the criminal, to any competent authority for action. In the absence of such material, the apprehension of irreparable harm remains, on this record, unsubstantiated. 26.Nor would the Petition be rendered nugatory if the orders are declined. The substantive reliefs claimed in the Petition, declarations that the Applicant's rights have been violated, general and exemplary damages, and, if warranted, transfer, remain fully available for determination at the hearing, and any established violation can be vindicated then. Indeed, the reliefs sought in the Motion (an order restraining mistreatment and an order of transfer) are, in substance, the very reliefs claimed in the Petition. To grant them now would be to determine the Petition at the interlocutory stage and to pre-empt the trial, precisely what conservatory orders are not designed to do. (v) Public interest and the balance of the risk of injustice 27.The public-interest inquiry is central to conservatory relief. On the one hand stands the weighty public interest in ensuring that no person, however grave the charges against him, is subjected to torture or to inhuman or degrading treatment in the custody of the State; the Constitution admits of no exception to that guarantee. On the other hand stands the equally weighty public interest in the secure administration of a maximum-security prison, in the safety of other inmates and officers, and in the prevention of radicalisation, interests which, on the documented material, are directly engaged by the presence of a detainee assessed as a high-risk offender with a demonstrated capacity to influence and command co-accused persons within the facility. 28.Weighing these considerations, and adopting the course that carries the lower risk of injustice (see Films Rover (supra)), I am satisfied that the public interest does not favour the grant of the orders as prayed. The transfer sought would disrupt legitimate security arrangements and the Applicant's proximity to the several courts before which he is being tried, without any established justification under section 30 of the Persons Deprived of Liberty Act, which requires proof that the Applicant's health, safety or well-being is in fact threatened, proof that has not been furnished. A broad order restraining "isolation" would, in practical effect, disable the statutory segregation of a high-risk terrorism detainee upon untested allegations. (vi) The prayer for a report 29.The prayer that the Officer in Charge file a formal report on the Applicant's treatment, welfare and security arrangements stands on a different footing; it is not a determinative relief and is directed at enabling the court to satisfy itself as to the Applicant's condition. That purpose has, for present purposes, been substantially served: the Replying Affidavit and its annexures constitute, in effect, such a report, describing and depicting the conditions of the Applicant's custody. To that limited extent the prayer has been overtaken by events, and no separate order is necessary at this stage. Disposition 30.For the foregoing reasons, I make the following orders:(a)The Applicant has not established the threshold for the grant of conservatory orders, and the prayers in the Notice of Motion dated 22nd September 2025 for an order restraining "isolation, torture or inhuman treatment" in the broad terms sought, and for the immediate transfer of the Applicant to another facility, are declined.(b)The prayer for a report is spent, the Replying Affidavit and its annextures having substantially furnished the information sought. The trial court is, however, at liberty to be called upon to render a further report should the court, on the application of either party, so require.(f)Costs of the Motion shall be costs in the Petition.Orders accordingly. SIGNED, DATED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE