https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11698

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **CRIMINAL DIVISION** **MISCELLANEOUS CRIMINAL APPLICATION NO. E162 OF 2026(CONSOLIDATED WITH MISC. NO. E159 /2026, E163/2026 AND E164/ 2026)** **IN THE MATTER OF AN APPLICATION FOR ORDERS IN THE NATURE OF A HABEAS CORPUS WRIT** **AND** **IN THE MATTER OF ARTICLES 22, 23, 25(d), 29, 49, 51(2), 165 (3) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF SECTION 389 OF THE CRIMINAL PROCEDURE CODE, CAP. 75 OF THE LAWS OF KENYA** **BETWEEN** 1. **PAMELA ALOO (suing as the mother of EVANS OTIENO OMONDI)-----------------------------------------------------------------------1ST APPLICANT** 2. **BEATRICE WANJIRA (suing on as mother of MACMILLAN KIARIE MUGO) -------------------------------------------------------- 2ND APPLICANT** 3. **ROSE APII (Suing as wife of MICHEAL OLOO OSORO) --------------------------------------------------------------------------------------3RD APPLICANT** 4. **SIASA PLACE------------------------------------------------- 4TH APPLICANT** **VERSUS** **THE INSPECTOR GENERAL,** **NATIONAL POLICE SERVICE---------------------------1ST RESPONDENT** **THE DIRECTORATE** **OF CRIMINAL INVESTIGATIONS (DCI)------------2ND RESPONDENT** **THE OFFICER COMMANDING STATION (OCS),** **RUAI POLICE STATION----------------------------------3RD RESPONDENT** **THE ATTORNEY GENERAL-----------------------------4TH RESPONDENT** **DOUGLAS KANJA KIROCHO---------------------------5TH RESPONDENT** **RULING** **INTRODUCTION** 1. The applicants in this matter are **PAMELA ALOO (suing as the mother of EVANS OTIENO OMONDI), BEATRICE WANJIRA (suing on as mother of MACMILLAN KIARIE MUGO), ROSE APII (Suing as wife of MICHEAL OLOO OSORO)** and **SIASA PLACE** whofiled High Court Misc. Criminal Application No. E159, E162, E163 and E164 all of 2026 seeking habeas corpus orders in order to have the subjects named in each of the applications produced in court or immediately released from custody. 2. On 13th July 2026 this court issued summons to appear to the respondents to appear before the court either by themselves or their duly appointed counsel and to produce the subjects of the three applications before the court and show cause why the three should not be immediately released from their custody. 3. At the hearing of the applications counsel agreed to have the matters consolidated and heard together since the subject matter was the same and the common thread of their applications was that they were all arrested and detained by the respondents. The matters were consolidated and heard under the file E162 of 2026. 4. On 14th July 2026 the legal representatives of the 1st 2nd, 3rd, 4th and 5th respondents appeared led by Mr. Nyamodi Senior counsel and informed the court that the three subjects were not in the respondents’ custody and therefore the applications ought to be set down for hearing in the normal way since the burden of proof lay on the applicants to show that indeed the subjects of the habeas corpus application were in the custody of the applicants. **APPLICANTS APPLICATION FOR WITNESS SUMMONS AND PRODUCTION OF CCTV FOOTAGES** 1. The matter came up for hearing on 20th of July 2027 and each of the applicants testified in support of their applications and adopted the affidavits that they had filed in support of each of the applications 2. After the fourth witness for the applicants had testified Mr. Mango counsel for the applicants applied for witness summons against three individuals namely: Brenda Akoth Opondo, Waceke Macharia and Jane Nyambura Njoroge persons that Mr. Mango submitted held crucial information that would assist the court in arriving at the just determination of the matter. 3. Mr. Mango further argued that it was in the interestS of justice to have the three persons summoned considering the monumental public interest concerns that arise in this matter regarding the disappearance of the three subjects. 4. Counsel for the applicants through Mr. Maina further applied for CCTV footages held by the investigators that were retrieved in connection with this matter to be availed and played before the court to help the court in establishing whether the three subjects may have been arrested by agents of the respondents as alleged by the applicants. 5. The applicants contended that the intended witnesses hold crucial evidence that could assist this court in determining whether the missing persons are in the custody of the respondents since they all have denied arresting and holding the subjects. **OBJECTION BY THE RESPONDENTS** 1. The respondents through Mr. Nyamodi SC opposed the application arguing that what the applicants were attempting to do was to hijack the case for the respondents by citing persons named in paragraph 8 of the affidavit of Humphrey Kaimenyi sworn in opposition to the application. 2. The respondents further argued that since Kaimenyi had not yet testified it would be improper for the applicants to seek to have persons named in his affidavit summoned to testify in the proceedings in favor of the applicants. 3. It was further argued that counsel for the applicant had not laid a basis for having the witnesses summoned since the investigations were still ongoing. 4. The respondents contended that if the three were to be summoned to give evidence such action would be prejudicial to the respondents’ case thus the court should decline to grant the request by the applicants. The respondents further argued that it was necessary to have Mr. Humphrey Kaimenyi testify before the persons named by the applicants could be considered for summoning by the court if at all. 5. Similarly, counsel for the respondents opposed the introduction of the CCTV footages at this stage of proceedings arguing that the footages were in the hands of the investigators who are still undertaking investigations. 6. Having heard the opposition regarding the summoning of the three intended witnesses, the court suo moto, sought to know from Mr. Nyamodi SC whether the respondents intended to call the persons named by Mr. Kaimenyi as their witnesses. In answer Mr. Nyamudi responded in the negative meaning therefore that if the court was to decline the request by the applicants to summon them then there was no chance that the court would get an opportunity to hear the evidence of those three persons yet they have been mentioned in the affidavits and in the course of the proceedings. **ANALYSIS AND DETERMINATION** 1. The predominant purpose of habeas corpus proceedings is to secure the liberty of the person alleged to be illegally detained by another. 2. The **Halsbury’s Law England, Vol 11 (4th Edition) 771 para.1456** states that the writ of habeas corpus is remedial in nature. Its paramount object is to secure the release of a person who is wrongfully detained and not to punish the wrongdoer. It follows therefore a court seized of *a* ***habeas corpus*** application must focus on securing the liberty of the individual as opposed to other concerns that parties may have. 3. The writ is often described as a great constitutional privilege or the first security of civil liberty. The principal aim of the writ is to provide for a swift judicial review of alleged unlawful restraint of liberty. 4. The court therefore has a duty to examine the evidence tendered before it with the primary objective of determining whether or not the subject of the habeas corpus application is in the custody of the respondents or any other identifiable person, body or authority and if so, whether the restraint on his liberty is legal and justifiable in law. 5. Any material therefore that the court may lay its hands on that is likely to assist in the just determination of a habeas corpus application or petition should not be lost at the insistence of parties on procedural technicalities whose sole aim is to cause the exclusion of any such material from examination. 6. The court should also be inclined to summon any individual whose identity is made known to the court and who in the opinion of the court may hold crucial information that would tend to shed light on the circumstances surrounding the arrest and detention of the subject(s) of the habeas corpus applications. 7. The settled position in common law is that there is no property in a witness and that fact witnesses are not the private property of the party that interviewed them, obtained a statement from them, or included them on a witness list. 8. The court or the adverse party may call such witnesses where the party who has listed them or exposed their identities is not inclined to call them and in the opinion of the opposite party the calling of that witness may assist in the just determination of the matter. 9. The court is also at liberty to summon any person who in its opinion may assist the court through his testimony in providing evidence that may assist in the resolution of the dispute at hand. 10. In **Harmony Shipping Co. SA v Saudi Europe Line Ltd [1979] 1 WLR 1380** (Court of Appeal of England & Wales) Lord Denning MR famously held: ***"There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth... Subject to the rule against disclosure of privileged documents, any party is entitled to subpoena a witness to give evidence."*** 11. The court in a habeas corpus proceeding just like any other proceeding is interested in the truth that would lead to a just determination of matter and shall do so regardless of the perceived inconvenience it may occasion to any particular individual or party. That is the high duty placed on the shoulders of the court in a matter such as this where three (3) Kenyans are said to have been abducted as they went about their daily lives and shuttled to some undisclosed location. 12. In **REPUBLIC v DANSON MGUNYA & another [2010] KEHC 4116 (KLR)** Justice M. Ibrahim (as he then was) had this to say about liberty;- ***“Liberty is precious and no one’s liberty should be denied without lawful reasons and in accordance with the law. Liberty should not be taken for granted. I will never take liberty for granted and I know neither will Dr. Khaminwa having both experienced the meaning of detention without trial and solitary confinement at Kamiti Prison during the struggle for the Second Liberation.”*** 13. It is the struggle for the Second liberation that gave birth to the current Constitution of Kenya and the inclusion of the right to an order of habeas corpus under Article 25 of the Constitution as one of those inalienable rights of every individual elevated the place of habeas corpus writ to a Constitutional right aS opposed to a prerogative writ as earlier known under the English law. This was not an accidental happening flowing from what Justice Ibrahim stated the authority cited above. 14. The court must therefore in determining any question that affects the attainment of such a right develop the law in a manner that most favours the enforcement of the right. 15. The court ought therefore not pay undue regard to procedural technicalities that would result in defeating the attainment of the right. Article 159 (2) (d) outlaws such an approach. 16. The obligation of a witness is to the court to assist in ascertaining the truth. Therefore, a respondent cannot prohibit or prevent the applicants from interviewing or issuing a court summons (subpoena) to a person named in the respondent’s affidavit considering that the respondents indicated unequivocally that they would not be calling the persons named in the affidavit of Humphrey Kaimenyi. 17. It is the firm view of this court that since the applicants allege that the three subjects are in the custody of the respondents, a fact that the respondents have disputed, it would be in the best interests of all the parties, the respondents included, to unmask the faces of the persons who may have been involved in the abduction or kidnapping of the subjects. 18. The disclosure of their identities of the kidnappers or abductors would aid the respondents too in their continuing investigations thus no prejudice would be suffered by the respondents. 19. The party alleged to be holding a detainee upon response to the summons issued to them must make a full, complete, and unreserved return to the court. If the investigator has information that may assist the court in identifying the captors of the missing person that too must be disclosed since under Section 34 of the Criminal Procedure Code private persons have the power to arrest persons who commit cognizable offences such as abduction or kidnapping. The instant proceedings being public, it would be in the interests of justice to have the information shared with the court and the public at large for it may aid in the eventual arrest of the captors even by private citizens. 20. The investigator cannot selectively withhold case file materials or claim private ownership over investigation records relevant to the lawfulness of the detention. For any information to qualify for exclusion a proper basis must be laid. Any evidence and underlying documents that touch on the arrest or detention of the subject becomes part of the court’s record (exhibits in court), over which the court retains absolute custody but may be released to the investigator if further action is required on the part of the investigator. 21. In **R v. Barnardo** **[1889] 23 QBD 305** (Lord Esher MR) the Court of Appeal emphasized that once the court's jurisdiction via habeas corpus is invoked, the officer or custodian must account directly to the court for the body and the circumstances surrounding the detention. The court’s authority supersedes the administrative or investigative authority of the custodian. 22. The respondents having said that they do not have the subjects in their custody must let the applicants present all the evidence available to them and the court to enable the court determine the truth of the matter otherwise to with hold any evidence whether oral or documentary, that would place the court in a quandary thus making it almost impossible in determining whether the respondents have the subjects of the habeas corpus in their custody or whether they are in the custody of some other persons. 23. Habeas Corpus proceedings are Civil in Nature even though they are anchored under Section 389 of the Criminal Procedure Code and Article 25 of the Constitution. **Order 16, Rule 1 of the Civil Procedure Rules (2010)** permitsany party to apply to the court at any time after the suit is instituted for a summons to any person whose attendance is required either to give evidence or to produce documents. This order is therefore available to the applicants in this matter. 24. The persons named by the applicants and the deponent of the Respondents affidavit may be summoned at the instance of any party or the court to appear and testify. That would not in anyway amount to hijacking the case for the Respondents as contended by Mr. Nyamodi SC. 25. The respondents would have the opportunity to cross-examine the witnesses and test the electronic evidence. 26. The CCTV footages that the applicants have and the respondents hold should also be made available to the court and each of the parties must ensure that they comply with the requirements of the provisions of Section 106B of the Evidence Act. 27. The officers or individuals who retrieved the CCTV footages must present them accompanied by the necessary certificates. 28. The principle that parties cannot "monopolize" or hide witnesses must be respected and upheld more so considering the compelling public interest in this matter. 29. If the respondent decides not to call a witness, they previously listed, or if the applicant believes that witness will actually support the applicant's case, the applicant can apply for a witness summons under Order 16. The respondents said that they would not be calling the witnesses intended to be called by the applicants, thus they should hold their horses and prepare to test the evidence that the witnesses shall present and challenge the electronic evidence as well. 30. As stated elsewhere in this ruling, the interest of the court in proceedings of this nature is to ensure that the truth is laid bare so that the grieving families who are anxiously out to establish the fate of their kin can walk out of this court shoulders high satisfied that justice has not only been done but has been seen to be done. 31. We owe it to them under Article 159 (2) (a) of the Constitution which requires that justice to be done to all irrespective of status. Habeas corpus proceedings are strictly meant to remedy wrongful detention and are not meant to act as a form of punishment. 32. The application therefore succeeds and the court hereby makes the following orders; - 33. witness summons be and are hereby issued to;- **i)** Brenda Akoth Opondo **ii)** Waceke Macharia **iii).** Jane Nyambura Njoroge **b).** The CCTV footages referred to by Humphrey Kaimenyi are to be availed and played in these proceedings. 45. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 23rd day of JULY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Noordin/Oyoo/Miana Nango/Oriaro Ms Faith Odhiambo/Wesonga for Applicants Nyamodi SC/Baraza for 1st, 2nd & 3rd & 5th Respondents Nyamodi holding brief Marwa for 4th Respondent