https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12092

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **HIGH COURT CRIMINAL MISCELLANEOUS APPLICATION NO. E217 OF 2025** **IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS & FREEDOMS UNDER ARTICLES 2,10,22,23,25,28,47,48,49,50 & 258 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE OF: SECTION 385, 386, 387 & 389 OF THE CRIMINAL PROCEDURE CODE** **BETWEEN** **MWENDA MBIJIWE .........................................................................1ST APPLICANT** **JANE GATWIRI MITHINJI ...............................................................2ND APPLICANT** **VERSUS** **ATTORNEY GENERAL ...................................................................1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE ..............................................2ND RESPONDENT** **DIRECTOR OF CRIMINAL INVESTIGATIONS ...............................3RD RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTIONS ......................................4TH RESPONDENT** **NATIONAL POLICE SERVICE .......................................................5TH RESPONDENT** **RULING** The chamber summons dated 14th August, 2025 seeks the following orders; 1. Habeus corpus directed to the respondents to produce the 1st applicant dead or alive before this Honourable Court. 2. An order for the release of *Mwenda Mbijiwe* forthwith. *Mwenda Mbijiwe* is said to have disappeared on the 12th June, 2021 while in the hands of State agents within *Roysambu town* while en-route to Meru. This is a nutshell is what prompted this application. The application is opposed vide replying affidavit sworn by *Fredrick Okeyo* filed on 15th December, 2025. And a further affidavit filed by 2nd, 3rd and 5th respondents on 10th February, 2026 in response to applicant’s supplementary affidavit. This matter proceeded by way of viva-voce evidence. The 2nd applicant testified on behalf of the applicants whereas the investigating officer testified on behalf of the 2nd, 3rd and 5th respondents. Article 51(2) of the constitution provides as follows; ‘‘A person who is detained or held in custody is entitled to petition for an order of habeas corpus’’ Section 389(1) of the Criminal Procedure Code provides for the right to Habeas corpus in the following manner; ‘‘The High Court may whenever it thinks fit direct; 1. That any person within the limits of Kenya be brought up before the court to be dealt with according to law. 2. That any person illegally or improperly detained in public or private custody within those limits be set at liberty’’. From the above definitions it comes out clearly that there are two (2) limbs in regard to orders for habeas corpus. These are; 1. If a person is illegally detained or held by the respondents or their agents. 2. If a person is illegally detained by identifiable persons other than the respondents. In the case of *Grace Stuarf Ibingira* and others vs. Uganda (1966) EA 445 as cited in Mombasa High Court Petition No. 7 of 2014 *Masoud Salim Hamed* *vs. DPP & 2 Others*, the then East African Court of Appeal sitting in Uganda rendered itself thus; ‘‘The writ of Habeas corpus is a writ of right granted *ex-debito justitiae*, 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 test the validity of the detention and so as to ensure his release from unlawful restraint. It is a writ which is open not only to citizens of Uganda but also to others within Uganda and under the protection of the State. The object of the writ is not to punish but to ensure release from unlawful detention; therefore, it is not available after the person has in fact been released. The writ is directed to one or more persons who are alleged to the responsibility for the unlawful detention and it is a means whereby the humblest citizen of Uganda may test the action of the executive government no matter how high the position of the person who ordered the detention. If the writ is not obeyed, then it is enforced by the attachment for contempt of all persons who are responsible for the disobedience of the writ’’. As regards the second limb, in the case of Law Society of Kenya and 7 others vs. Inspector General of Police & 8 others, Independent Police Oversight Authority and 9 others (interested parties) Constitutional Petition E714 of 2024 (2025) KEHC 461 3(KLR) Constitutional & Human Rights) (10th April, 2025) the court laid down conditions thus; ‘‘The second limb, compelling respondents to lawfully retrieve the subject person from the illegal detention or custody by identifiable persons other than the respondents themselves is directly drawn in from a purposive reading of section 389 (1) (b) of the Criminal Procedure Code’’. The applicants would need to satisfy the court that; 1. The subject person is still within the jurisdiction of the court in this case, within the borders of the Republic of Kenya. 2. The subject person is under the illegal custody and detention of a specified or identifiable person or persons not being the respondent or respondents whom the writ of Habeas corpus is sought against. 3. The respondent or respondents can lawfully be directed by the court to retrieve the subject person from the illegal custody and detention of those specified or identifiable person or persons and 4. The ensuing writ of Habeas Corpus would be capable of enforcement by the respondents and would not be in vain. **Issue for Determination** 1. Whether the applicants have attained the threshold for the grant of Habeas corpus as prayed in their application. 2. Whether the applicants are entitled to the declarations and other orders sought. 3. Whether the required threshold for the grant of Habeas corpus has been attained. It is trite law that ‘‘he who alleges must prove’’. This is in line with the provisions of section 107 of the Evidence Act. There is no dispute that the 1st applicant went missing on 12th June, 2021. On 13th June, 2021 the 1st applicants step mother made several calls to establish his whereabouts but all in vain. The 2nd applicant who is the biological mother was duly informed of the situation. A report was formally made at central police station vide OB. No. 75/16/06/2021. Another report was made at Langata police station vide OB. No. 44/18/06/2021. To that extend the disappearance of the 1st applicant stood documented and proved. But it is not enough to prove disappearance for the court to grant Habeas corpus. It is the duty of the applicants to prove that the 1st applicant was in illegal custody of the respondents or in the illegal custody of identifiable persons other than the respondents. In the case of *Masoud Salim Hemed vs. Ag,* Petition No. 7 and 8 of 2014, the court had this to observe; ‘‘The general burden in a Habeas corpus application must pursuant to section 107 of the Evidence Act remain with the petitioner as stated in the case of *MA, Estrelia D. Martinez vs. Director General & ORS, Supra* ‘‘The petitioner must establish any competent and convincing evidence that the missing person, on whose behalf the petition was filed, is under the custody of the respondents’’. In this case the petitioners were able to establish and this was admitted by the respondents, the arrest of the subject by the police and the question is on whether the police had the custody of the subject at the time of the Habeas corpus proceedings. Where detention of an applicant is established, the burden of proving the legality of detention rests with the State, See Archbold criminal pleading evidence and practice 2012 at page 1767 paragraph 16 – 55. ‘‘To place the burden on applicant to prove illegality of the detention is to require the applicant to prove a negative’’. Further in the case of Law Society of Kenya & 7 others it was held; ‘‘Whether under the first or second limb, a writ of Habeas corpus cannot be issued where the matter involves a mere disappearance of a person or their abduction or kidnapping by a person or persons unknown, for a writ of Habeas corpus to be issued the court must be satisfied that the respondent has or had custody of the subject person or that it is just and proper that the respondent should be ordered to secure the liberty of the subject person because the four told criteria set out in paragraph 21 above have all been met’’. In her evidence before the court it was quite evident that the 2nd applicant was not present when her son who is the 1st applicant disappeared. She did testify that on 12th June, 2021 she was not in Nairobi but at her rural home in Meru. It was her evidence that *Edward Mwangi* Macharia from whom her son hired motor vehicle registration No. KCN 641K had informed her that the 1st applicant had been kidnapped. The court was of the view that this witness could throw some light on the disappearance of the 1st applicant and issued summons for his attendance, however, he did not present himself in court to testify. The only evidence on the disappearance of the 1st applicant is that of his mother (the 2nd applicant) who was nowhere near the scene of disappearance. To that extent there is no evidence to indicate whether the 1st applicant was in illegal custody of the respondents or under the custody of a specified or identifiable person or persons. When the 2nd applicant and her co-wife made a report to police, it was in the nature of a missing person not an abduction. After a report of a missing person was made to the police thereafter, information was received to the effect that the motor vehicle the 1st applicant was using at the time of disappearance was found abandoned near *Tatu city* and was towed to Ruiru police station and released to Edward Munyiri Macharia who was the owner. It is not clear whether any investigations were conducted at the place of recovery of the vehicle or on the vehicle itself. Four (4) years down the line, an application was made in court seeking orders to obtain the 1st applicants. In my history call data and geo-mapping details. In the year 2025, a flurry of activities were put in motion vide letters to Banking Fraud Investigation Unit to check for post disappearance, financial transactions, another letter to Business Registration Service to establish ownership of EYE ON SECURITY company, another letter to NTSA seeking details of motor vehicles allegedly hired by the 1st applicant. These investigative tools were being activated five (5) years after the disappearance of the 1st applicant what value can these investigations yield after a duration of five years after the disappearance of the 1st applicant. In the case of Amnesty International Kenya & Another vs. Attorney General & 4 Others (2021) eKLR the court emphasized the constitutional mandate that investigations into disappearance of persons must be prompt, independent and effective. The investigations into the disappearance of the 1st applicant are wanting in substance. However, having clearly indicated the courts displeasure with the investigations, I hasten to point out that the main issue before the court is that of a Habeas corpus application. This court has not been approached to supervise investigations in the matter or give directions thereto. I rest my observations on investigations at that. **Conclusion** From the evidence adduced in court a prima facie case has not been made to the effect that the 1st applicant was in the illegal custody of the respondents. Secondly, whether the applicant was being illegally detained by a specified or identifiable person other than the respondents. This application has no merit and it is dismissed. No order to costs as this is a public matter. **RULING DELIVERED** in open court this 3rdday of June, 2026. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **MARTIN M. MUYA** **JUDGE** **In the Presence of:** Mr. Onduki for the Applicant Baraza hold brief Nyamodi for 2nd, 3rd and 5th Respondent Court Assistant – Isacko Molu