[2015] KEHC 3683 (KLR)
The court found that it could not make a final determination on the application for habeas corpus until it is established whether the body of the unknown male at Kenyatta National Hospital mortuary is that of Martin Ndungu Wambui. The court held that the liberty or production of the subject cannot be ordered unless...
Source-derived case information.
- Citation
- [2015] KEHC 3683 (KLR)
- Parties
- Applicant: Esther Wambui Kimani; Respondent: Director of Public Prosecutions; Respondent: Inspector General of Police; Respondent: O.C.S (Buru Buru)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 86 of 2015
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Habeas Corpus Directions
- Outcome
- Ruling deferred pending DNA results; directions issued for mention and reporting of DNA outcome.
- Judges
- AW Macharia
- Legal Topics
- Habeas Corpus, Unlawful Detention, Police Custody, Right to Liberty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Wambui Kimani
Applicant
Director of Public Prosecutions
Respondent
Inspector General of Police
Respondent
O.C.S (Buru Buru)
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Habeas Corpus Directions
Legal Issues
- 1 Whether Martin Ndungu Wambui is being unlawfully detained by the respondents.
- 2 Whether the court should issue a habeas corpus order for the production or release of Martin Ndungu Wambui.
- 3 Whether the identity of the deceased at Kenyatta National Hospital mortuary is that of Martin Ndungu Wambui.
Ratio Decidendi
The court found that it could not make a final determination on the application for habeas corpus until it is established whether the body of the unknown male at Kenyatta National Hospital mortuary is that of Martin Ndungu Wambui. The court held that the liberty or production of the subject cannot be ordered unless it is demonstrated that he is under the unlawful custody of the respondents. Since DNA results to confirm the identity of the deceased are pending, the court deferred its final decision and directed that the matter be mentioned at a later date for further directions upon receipt of the DNA results.
Court Disposition
Ruling deferred pending DNA results; directions issued for mention and reporting of DNA outcome.
Orders
- Matter to be mentioned on 23rd July, 2015 for the O.C.S. Buru Buru Police Station, through the office of the D.P.P., to inform the court of the DNA test results.
- O.C.S. Buru Buru Police Station (Chief Inspector Johnston Matoke) to serve DNA results upon the office of the D.P.P.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CRIMINAL APPLICATION NO.86 OF 2015
IN THE MATTER OF CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 389 OF THE CRIMINAL PROCEDURE CODE
AND
IN THE MATTER OF AN APPLICATION FOR DIRECTIONS IN THE
NATURE OF HABEAS CORPUS
AND IN THE MATTER OF CRIMINAL PROCEDURE (DIRECTION IN
THE NATURE OF HABEAS CORPUS RULES)
BETWEEN
MARTIN NDUNGU WAMBUI…....…………....…………....……APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS…….…...........1STRESPONDENT
INSPECTOR OF GENERAL OF POLICE ……….......…..2ND RESPONDENT
O.C.S (BURU BURU)……………………….......……..…3RD RESPONDENT
RULING
By Chamber Summons dated 6th March, 2015, Esther Wambui Kimani the applicant herein, prays that an order of summons be issued directed to the Inspector General of Police in whose custody Martin Ndungu Wambui is for his production before the court or his immediate release.
The same is supported by the affidavit of the applicant herein sworn on 27th February, 2015. The gist of the Supporting Affidavit is that the subject Martin Ndungu was arrested on 17th October, 2014 and placed into custody of Buru Buru Police Station. On enquiry at Buru Buru Police Station about the detention of the subject, the applicant was informed by the O.C.S. that the subject had been taken ill and was rushed to Mama Lucy Hospital for treatment. She then proceeded to Mama Lucy Hospital but did not trace the subject who was her son. She also checked at the hospital mortuary without success.
Since the matter commenced, the court has conducted an inquiry and has heard both the O.C.S. and Deputy O.C.S. of Buru Buru Police Station, namely Chief Inspector Johnston Matoke and Inspector Mohammed Abdi respectively. The information they have availed to court discloses that there is no dispute that the subject was booked into Buru Buru Police Station on 17th October, 2014 for the offence of being drunk and disorderly. In the night, he fell sick and in the company of three police officers namely Senior Sargent David Kitivo, Police Constable Eric Njogu and Police Constable Woman Carolyn he was escorted to Mama Lucy Hospital in a police vehicle being driven by Police Constable Manyengo. Upon being checked into the hospital, the subject was released from the police custody. All this information is borne out in Occurrence Book (O.B.) No.14 of 17th October, 2014, No.9 of 18th October, 2014 and No.74 of 18th October, 2014.
The police learnt that the subject was no longer at the hospital when the applicant returned to the police station to enquire of his whereabouts. Police visited Mama Lucy Hospital whereupon they learnt that the subject had been transferred to Kenyatta National Hospital after his condition deteriorated. And that it is at Kenyatta National Hospital that he passed on and the body was lying at the hospital’s mortuary. Armed with this information, the police requested the applicant to help in establishing whether the body that was lying at the K.N.H. was that of the subject. Towards this end, she was requested to avail body samples for purposes of conducting a D.N.A. test analysis. When this matter began the court was informed by Inspector Mohammed Abdi that the applicant had refused to co-operate for purposes of conducting the D.N.A. The same was to be done in view of the fact that, according to the police, the subject had been booked at Mama Lucy Hospital and Kenyatta National Hospital as an unknown male. The police also asserted that the applicant had also refused to go to the mortuary to confirm whether that body belonged to her son. However, as at 1st July, 2015, the court was informed by Chief Inspector Johnston Matoke that the applicant is currently cooperating with the police with a view to having the D.N.A. test conducted. He informed the court that samples for that purpose were taken about two weeks ago and the police expected results in a fortnight.
The concern of this court is to see to the liberty or the production of the subject. This can only be achieved if it is demonstrated that the subject is under the unlawful custody of the respondents. The circumstances of this case are such that that cannot be achieved before it has fully been established that the body of the ‘unknown male’ lying at the Kenyatta National Hospital mortuary is or is not of Martin Ndungu Wambui. For that reason, I am not in a position to make a final finding on the issues before the court. The same shall be done once the D.N.A. results have been released. I accordingly direct that this matter be mentioned on 23rd July, 2015 on which date the O.C.S. Buru Buru Police Station through the office of the D.P.P. shall inform the court on the results of the D.N.A. test. The court shall thereafter give directions on the way forward. The order herein shall be served on the O.C.S. Buru Buru Police Station one Chief Inspector Johnston Matoke with directions to serve the results of the D.N.A. upon the office of the D.P.P.
It is so ordered.
DATED and DELIVERED at NAIROBI this 2nd day of JULY, 2015.
G. W. NGENYE – MACHARIA
JUDGE
In the presence of:-
1. No appearance for the applicant
2. M/S Aluda for the respondent