High Court has tamed arbitrary police powers

There are moments when a court decision speaks beyond the people who stood before it. The judgment of Justice Patricia Nyaundi in Ndiang’ui Kinyagia v State Law Office and Others, Petition E600 of 2025, is one such moment. It asks a weighty question: How far can the police go when investigating crime? The answer from the High Court is very consequential. Police have formidable powers, but those powers have boundaries fixed in constitutional pillars. The Constitution remains at the door of every Kenyan home, even when the police arrive there in the name of an investigation.

The story began on June 18, 2025. An X account, @Daguindd, published a post which police considered inflammatory and seditious. The police began investigations and, on June 20, sought assistance from the Communications Authority of Kenya to analyse and preserve messages associated with the account. Their investigations led them to Mr Ndiang’ui. The following day, officers went to his residence at 1313 Apartments in Kinoo. They could not reach him. They remained at the premises for much of the day and eventually forced their way into the house. They removed several items, including laptops, mobile phones, passports and other documents. An inventory was left with the caretaker. Ndiang’ui, having learnt that officers were at his home, went into hiding. His mother could not reach him and became worried. She reported him missing and, with the assistance of the Law Society of Kenya, a habeas corpus case was filed. The episode therefore moved quickly from an ordinary police investigation into a matter touching the liberty, safety and dignity of a citizen.

The police defended their conduct by relying on sections 24 and 60 of the National Police Service Act. They maintained that the law gave them authority to investigate and, in appropriate circumstances, enter premises and seize material relevant to an investigation. Later, after Ndiang’ui resurfaced, the police went to the Magistrates’ Court and obtained orders allowing forensic examination of the devices they had taken. The timing became important.

The High Court had to consider whether a later court order could cure an earlier unlawful search and seizure. Nyaundi first rejected the argument that the constitutional petition was too vague. Ndiang’ui had identified what happened, the constitutional rights he said had been violated, and the remedies he wanted. That was enough to meet the constitutional requirement of reasonable precision. The law, the judge said, requires substance, not mechanical perfection as a barrier in a right-centric constitutional order.

The heart of the judgment, however, was privacy. Article 31 protects the home, possessions and private affairs of every person. The police argued that section 60 of the National Police Service Act permitted a warrantless search. But the judge pointed to the conditions attached to that power. An officer relying on section 60 must have reasonable grounds for believing that an item connected with a crime is in a particular place. The officer must also believe that obtaining a warrant would substantially prejudice the investigation. Those reasons must be recorded in writing. The officer must carry and produce identification when requested. Items seized must be recorded and taken without undue delay before a magistrate.

These safeguards, the judge stressed, are mandatory and cannot be bypassed by broad reference to investigative powers. Section 60 the court found, is a constitutional safeguard given statutory form. The police had not demonstrated that these requirements were followed. The result was a finding that the entry, search and seizure violated Ndiang’ui’s right to privacy under Article 31. The seizure of his laptops, phones, passports and vaccination certificate also violated his property rights under Article 40.

The judgment went further. The manner in which the officers exercised their authority mattered. The court found that the display of force caused fear and affected Ndiang’ui’s dignity, security and freedom of movement. Article 244 requires the National Police Service to respect human rights and fundamental freedoms. Police power, the judge observed, does not stop being constitutional merely because officers are standing at the threshold of a citizen’s home. Then came the most consequential part.

Nyaundi distinguished between an investigation which merely contains an illegality and an investigation which is born of illegality and depends upon it. In this case, she found that the unlawful entry, search and seizure were foundational to the investigation. The police had acted first and sought to clothe that conduct with legality afterwards. That could not stand. This does not mean that every police mistake ends a criminal investigation. The court expressly recognised the independence of investigative and prosecutorial institutions. But independence it found is no immunity from the Constitution.

Where criminal proceedings become a continuation or justification of unconstitutional police conduct, the court must intervene. The judgment therefore draws a firm line for future investigations. Police may search. They may seize. They may investigate. But they must do so through the law, not first and seek legal shelter afterwards. On September 22, 2026, the court declared that Ndiang’ui’s rights to privacy, property, dignity, freedom and security of the person, and freedom of movement had been violated. It awarded him Sh5 million in general damages. It also prohibited the Director of Public Prosecutions from prosecuting him on the basis of the unconstitutional investigative process.

The deeper message is perhaps the simplest one. The police are guardians of public order, but they are themselves creatures of the law. A citizen does not surrender constitutional protection merely because the State suspects him of wrongdoing. Unfortunately, this is the norm of police powers in Kenya. In a constitutional democracy, the investigation must follow the law. The law cannot be made to follow the investigation as is variously done by police ‘service.’