[2007] KEHC 759 (KLR)
The court determined that, given the gravity of the matter involving personal liberty and the existence of contested issues not fully clarified by affidavit evidence, it was necessary to summon the police officers who had custody of the subject, as well as any other relevant persons, to appear in court and provide...
Source-derived case information.
- Citation
- [2007] KEHC 759 (KLR)
- Parties
- Applicant: Muslim Human Rights Forum; Applicant: Al-Amin Kimathi; Respondent: Commandant of the Anti-Terrorism Police Unit; Respondent: Commissioner of Police; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 548 of 2007
- Procedural Posture
- Miscellaneous Application / Interlocutory Ruling on Production and Cross Examination of Witnesses
- Outcome
- Summons issued for police officers and relevant persons to appear for oral evidence; application to be heard on a future date.
- Judges
- GMA Dulu
- Legal Topics
- Habeas Corpus, Production of Detainee, Affidavit Evidence, Cross Examination of Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muslim Human Rights Forum
Applicant
Al-Amin Kimathi
Applicant
Commandant of the Anti-Terrorism Police Unit
Respondent
Commissioner of Police
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Ruling on Production and Cross Examination of Witnesses
Legal Issues
- 1 Whether the court should summon police officers and other relevant persons for oral evidence to clarify contested issues regarding the detention and release of the subject.
- 2 Whether the affidavits filed by the respondents sufficiently address the applicant's concerns about the subject's liberty.
Ratio Decidendi
The court determined that, given the gravity of the matter involving personal liberty and the existence of contested issues not fully clarified by affidavit evidence, it was necessary to summon the police officers who had custody of the subject, as well as any other relevant persons, to appear in court and provide oral evidence. The court emphasized that all relevant information must be placed before it to enable a proper decision or direction, and that this could not be achieved solely through the affidavits on record. The court exercised its discretion to issue summons for the appearance of the named officers and any other person with relevant information, thereby ensuring procedural...
Court Disposition
Summons issued for police officers and relevant persons to appear for oral evidence; application to be heard on a future date.
Orders
- Summons to issue for Nicholas Kamwande (ATPU Commandant), Simon Murage (ATPU), Alfred Majimbo (ATPU), Al-Amin Kimathi, and any other person with relevant information to appear in court.
- Application to be heard on 13th September 2007 before the Criminal Vacation Judge.
Full Case Text
Judgment text and source record
23 paragraphs
MUSLIM HUMAN RIGHTS FORUM
AL-AMIN KIMATHI...........................................................................................APPLICANTS
VERSUS
COMMANDANT OF THE ANTI-TERRORISM POLICE UNIT…….1ST RESPONDENT
COMMISSIONER OF POLICE…………......................……………2ND RESPONDENT
ATTORNEY GENERAL………………….................................…….3RD RESPONDENT
RULING
On 17th August 2007, Apondi J. granted leave to the respondents to file a further affidavit within 4 days and also granted reciprocal leave to the applicant to file a further affidavit. The learned Judge fixed the application for hearing on 23rd August 2007 at 9. 00 a.m. before the vacation Judge in the Criminal Division.
When the matter came before me on 23rd August 2003 Mr. Ndumbi appeared for the applicants, while Mr. Makura appeared for the respondents. Mr. Makura, learned State Counsel for the respondents informed me that they had filed and served further affidavit as directed by the court. However, the applicants had not served them with any further affidavit. Counsel submitted that the further affidavit 21/8/2007 clarified the issue that the subject had been released. That affidavit had not been challenged or controverted and therefore the respondent and therefore the respondent had complied with the legal requirements and explained why they could not release the subject to court. Counsel argued that a request to cross-examine police officers was made by the applicants counsel before Hon. Justice Apondi. The learned Judge did not make an order to that effect. That was after the counsel for the respondents opposed the application o summon police officers to give oral evidence. Therefore this court should not grant under dispute. The court can determine the issue on the basis of affidavits filed. But it can also require verification of the averments in the affidavits, before coming to a conclusion. It is instructive to note that initially the respondents appear to have been served, but did not attend court or formally response. Orders for production of the subject were then issued by the court. It was after issuance of those production orders that the respondents filed affidavits. The applicants are not satisfied with what is deponed in the affidavits of the respondents.
This matter involves the liberty and well being of a human person. It is not a matter to be taken lightly, and this court cannot do. It is, in my view, imperative that all relevant information is placed before the court to enable it make a proper decision or give proper directions. That, in my view, cannot be done in this case, without summoning the police who were holding the subject in their custody to appear in court and clarify the contested issues.
I therefore allow the request by counsel for the applicants and order that summons do issue on –
1. NICHOLAS KAMWANDE, the ATPU Commandant.
2. SIMON MURAGE of ATPU .
3. ALFRED MAJIMBO of ATPU
4. AL-AMIN KIMATHI
5. Any other person who might in the opinion of the court have relevant information relating to this matter.
This application will be heard on 13th September 2007 before the Criminal Vacation Judge.
Dated at Nairobi this 28th August 2007.
George Dulu
Judge
In the presence of –
Mr. Ndubi for applicants
Mr. Makura for State.