Lords of impunity snub court for the sixth time

In another display of impunity, Inspector General (IG) of Police Douglas Kanja and Director of Criminal Investigations (DCI) Amin Mohamed once again failed to honour summons to appear in court yesterday. 

This was the sixth time the two policemen failed to comply with High Court orders to appear and clarify the ongoing enforced disappearances of Kenyans, allegedly carried out by their juniors, a matter that has gripped the nation and raised serious concerns about the State’s role in it.

On Monday, the High Court, led by Justice Chacha Mwita, had directed Kanja and Mohamed to appear in person yesterday and provide answers regarding the fate of three missing men: Justus Mutumwa, Martin Mwau and Karani Muema, allegedly abducted in Mlolongo in December last.

The order came after the Law Society of Kenya (LSK) and other petitioners had filed a case in court demanding that the government produce the three or, at the very least, provide an account of their whereabouts.

Despite the repeated nature of these orders, the two top policemen have shown blatant disregard for the Judiciary, raising serious questions about the State’s commitment to upholding the rule of law and human rights.

The abductions, which have drawn national and international concern, have sparked protests and calls for accountability. The three individuals from Mlolongo, the latest publicly known victims, were seized in broad daylight on December 16 and 17 last year. Their families have lived in agony since, with no answers from authorities.

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Kanja and Mohamed’s failure to appear despite the court’s repeated directives sends a chilling message about the lack of accountability in the country’s security apparatus.

This was not the first time the court had ordered the police to explain the situation. Justice Mwita had already granted Kanja and Mohamed several extensions, but their failure to comply with the orders is becoming increasingly blatant.

This time, however, it was supposed to be different.

Justice Mwita had made it clear in his ruling on January 13 that failure to appear yesterday would be seen as an act of contempt, leading to further legal consequences.

Through their lawyer Paul Nyamondi, the two claimed they had only been served with the summons at 1:30pm on Thursday via email, barely 24 hours before they were due in court.

Nyamondi further argued that they only received the orders requiring Kanja and Mohamed to appear in court personally on Friday morning, just minutes before the proceeding session was set to begin, which was too late.

Yesterday’s failure of the IG and DCI to obey court orders comes just days after Justice Bahati Mwamuye gave them a final chance to appear in court on January 27, 2025, to address the matter of seven other abductees, six of whom have already been released.

“If the Inspector General of Police Douglas Kanja misses the third hearing date, I will have no option but to cite, convict, and sentence him on the spot,” stated Justice Mwamuye.

“In respect to the DCI boss Mohamed, I will convict and invite him for mitigation before sentencing if he also fails to appear in court on the same date. There will be no further opportunity beyond the next hearing date set,” Mwamuye said.

The court’s ultimatum came after Kanja and Mohamed’s repeated failures to appear as ordered in three other separate occasions. 

Previously served

While issuing the warning, judge Mwamuye hinted that Kanja should have given the matter of abductions priority because “this is what is in the minds of most Kenyans today.”

Yesterday, the IG and DCI filed an urgent application to set aside the court orders requiring them to appear in court and render an explanation on the Mlolongo three abductees, claiming that they were misled by the LSK lawyers.

They claimed they had not been served with pleadings dated January 8, 2025, which instructed them to produce the three missing individuals dead or alive by January 17.

Kanja and Mohamed further contended that their failure to comply with the court’s orders was not out of defiance, but because they were not given an opportunity to explain their position before the court issued its decisions.

Nyamondi said the two top police chiefs have been condemned unheard before the orders were issued.

He emphasised the technical nature of the issue, highlighting that the service of the court orders via email was improper. 

Attorney General Dorcas Oduor also supported the application, arguing that the two had not been given sufficient notice of the orders and that they were wrongly accused of withholding crucial information.

Meanwhile, Interior Cabinet Secretary Kipchumba Murkomen has also filed an application to be removed from the abduction case.

Represented by lawyers Danstan Omari and Sam Nyaberi, Murkomen argued that he has no direct involvement in security matters and that his role is confined to policy, advisory, and oversight within the Ministry of Interior. 

The petitioners, led by the LSK, were resolute in their demand for accountability.

Nyawa Malidzo, the LSK lawyer representing the petitioners, opposed the application by Kanja and Mohamed to have the court orders vacated.

Malidzo reminded the court that it had the constitutional authority to issue interim orders to protect human rights, especially in cases where individuals’ lives were at risk. 

The LSK argued that the court’s actions were fully within its mandate and that the authorities were simply attempting to evade responsibility.

“We submit that this court has jurisdiction to grant these orders under Article 23 of the Constitution, which allows the court to provide relief where human rights are under threat,” Malidzo stated during the court proceedings.

Malidzo referred to the Supreme Court’s 2014 ruling in the case of former Meru Governor Peter Munya, which affirmed the court’s ability to issue interim orders when the protection of constitutional rights was at stake.

He urged the court to stand firm and protect the rights of the abducted individuals, stating that the government’s failure to comply with the orders would set a dangerous precedent for the erosion of human rights protections.

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The petitioners reiterated their demand for the immediate release of the three abductees, stressing that lifting the orders would hinder justice and allow the State to evade responsibility for the disappearances.

“The public interest is in ensuring the protection of constitutional rights. When the right to life is at risk, the Constitution provides for the protection of individuals,” said the petitioners.

Florence Muturi, the LSK CEO, told the court that papers had been previously served to the same respondents using the same contact details, including email addresses, without objection.

“There is no evidence before you that these emails do not belong to the public offices of the respondents,” Muturi emphasized.

As the hearing unfolded, the situation took a dramatic turn when Makueni Senator Dan Maanzo, who is representing the abductees’ families, informed the court that police officers stationed at the entrance of Milimani Law Courts had prevented the victims’ relatives, specifically their aunts, mothers, and sisters from entering the court to follow the proceedings. 

In response, Justice Mwita directed that the matter be addressed by the deputy registrar.

The judge extended the orders issued on Monday, requiring the police to immediately release the abductees. He also ordered the IG and Kanja to appear in court on Thursday when he will rule on whether to vacate the summons against the two police bosses.