FIRM 1 H

KENYA SCHOOL OF
LAW
ATP 101-CRIMINAL LITIGATION PROJECT

Table of Contents
1.

Where in the Laws of Kenya is the remedy of Habeas Corpus Provide for?.......3

1.1 Constitutional Anchor........................................................................................ 3

1.2 Criminal Procedure Code Cap 75 Laws of Kenya...............................................4
1.3 Case Law........................................................................................................... 5
2.

Distinction between a Production Order and an Order for Habeas Corpus..............................7

3.

Instances where the remedy of Habeas Corpus may be invoked...........................................8

3.1 Immigration............................................................................................................ 8
3.2 Extradition............................................................................................................. 8
3.3 Court Marshall........................................................................................................ 9
3.4 Involuntary Committal to Psychiatric Institution...............................................................9
CERTIFICATE OF URGENCY...................................................................................... 11
AFFIDAVIT.............................................................................................................. 12
CHAMBER SUMMONS.............................................................................................. 15
SUPPORTING AFFIDAVIT.......................................................................................... 18
RE: LEGAL OPINION ON THE REMEDY OF THE ORDER OF HABEAS CORPUS AND ITS
AVAILABILITY IN KENYA......................................................................................... 21
RESPONDENTS WRITTEN SUBMISSIONS..................................................................28

1. Where in the Laws of Kenya is the remedy of Habeas

Corpus Provide for?
The Judiciary Act Cap 8, section 3 sets out the hierarchy of the laws of Kenya as follows;
The Constitution.
Acts of Kenyan parliament.
Specific Acts of the parliament of the United Kingdom cited in Part I of the schedule to
the Judicature Act.
Subsidiary /Delegated /subordinate legislation.
English statutes of General application, in force in England on the 12th August 1897.
The substance of Common law in force on the 12th August 1897
Judicial precedents.
The doctrine of Equity in force in England on the 12th August 1897.
Procedures and Practice observed by courts of Justice in England on 12th August 1897.
African customary law.
The Oxford Dictionary of Law defines habeas corpus, inter alia, as:
A prerogative writ used to challenge the validity of a persons detention, either in
official custody (e.g. when held pending deportation or extradition) or in private
hands .... If on an application for the writ the court or judge is satisfied that the
detention is prima facie unlawful, the custodian is ordered to appear and justify it,
failing which release is ordered.
With the foregoing in mind, we shall proceed to discuss the remedy of habeas corpus with
particular emphasis on the following sources of law as set hereunder.

1.1 Constitutional Anchor

The Constitution of Kenya, 2010 under Article 51(2) as read together with Article 25(d)
expressly provides for the remedy of a petition for an order of habeas corpus to a detainee or a
person held in custody, which remedy is not subject to limitation.
Additionally, the Constitution recognizes and entrenches two other sources of law applicable in
Kenya as under:
i. Article 2(5)- General rules of international law;

ii. Article 2(6)- Any treaty or convention ratified by Kenya e.g. The International Convention on
Civil and Political Rights.
The International Convention on Civil and Political Rights ratified by Kenya on May 1st 1972,
Article 9 states that everyone has the right to liberty and security of person and no one shall be
subjected to arbitrary arrest or detention.1 Further, Article 9(4) of the ICCPR states, Anyone
who is deprived of his liberty by arrest or detention shall be entitled to take proceedings to court,
for the court to adjudicate without delay on the lawfulness of his detention and order his release
if the detention is not lawful.
Detaining individuals without allowing them contact with their families and refusing to inform
their families of the fact and place of the detention of these individuals amount to inhuman
treatment both of the detainee and their families. This has been codified into law as under the
Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment.2

1.2 Criminal Procedure Code Cap 75 Laws of Kenya

The remedy of Habeas Corpus takes the form of Directions in the nature of Habeas Corpus. Such
directions may ensue from the High Court pursuant to Section 389 of The Criminal Procedure
Code.
The High Court may whenever it deems fit direct
(a)that any person within the limits of Kenya be brought up before the
court to be dealt with according to law;
(b)

that any person illegally or improperly detained in public or private

custody within those limits be set at liberty;

(c)

that any prisoner detained in a prison situated within those limits

be brought before the court to be there examined as a witness in
any matter pending or to be inquired into in that court;

1International Covenant on Civil and Political Rights, Dec. 16, 1966

2Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment ratified February
21st 1997
4

(d)

that any prisoner so detained be brought before a court martial or

commissioners acting under the authority of a commission from
the President for trial to be examined touching any matter pending
before the court martial or commissioners respectively;

(e)

that any prisoner within those limits be removed from one custody
to another for the purpose of trial; and

(f)

that the body of a defendant within those limits be brought in on a

return of cepi corpus to a writ of attachment.3

The procedure in applying for directions in the nature of habeas corpus is laid out in The
Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules being Legal Notice
No.474 of 1963. The same have been created by the Chief Justice in exercise of his mandate as
under Cap 75.
Under the said rules, an application for the issue of directions in the nature of habeas corpus has
in the first instance to be made ex-parte to a judge in chambers, supported by affidavit in
triplicate (Rule 2).
If the application is not dismissed, the judge shall order a summons to be issued directed to the
person in whose custody the person alleged to be improperly detained is said to be, requiring his
appearance at a specified place and time, together with the original of any warrant or order for
the detention, to show cause why the person detained should not be released forthwith (Rule 3).
Rule 4 provides that the summons shall be accompanied by a copy of all affidavits lodged in
support of the application and, where the person detained is in public custody, a duplicate of the
application, of the summons and of all affidavits lodged in support thereof shall be forwarded to
the Attorney-General.
A judge may, in addition to any other orders that he may make under the Rules, order the body of
any person alleged to be improperly detained to be produced before him in court (Rule 12).

3 Section 389 (1) Criminal Procedure Code Cap 75 Laws of Kenya

5

1.3 Case Law

In Ibingira & Others vs. - Attorney-General of Uganda 4, Sir Charles Newbold as President of
the then Court of Appeal for Eastern Africa, inter alia, had the following to say on the subject:
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 should the court hold that
he is unlawfully restrained....
The writ is directed to one or more persons who are alleged to be responsible for
the unlawful detention and it is a means whereby the most humble citizen... 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.
There is indeed no shortage of case law that supports the above statements, emphasizing the
substance of the writ of habeas corpus being one that is aimed at protecting a persons right to
liberty, a fundamental right. This entitlement is so vital that the High court in Mohamed vs. Attorney-General & 3 Others5 stated that persons charged with terrorism are to be accorded the
same statutory safeguards relating to arrest and detention of a suspect. That due to the
seriousness of terrorism, those given the authority to prevent and/or detect terrorist activities
should operate within the law so that terrorists do not go unpunished on grounds of flawed
investigations and breach of any constitutional provisions.

4Ibingira & Others vs.- Attorney-General of Uganda [1966] E.A. 445

5Mohamed vs.- Attorney-General & 3 Others [2003] K.L.R. 338
6

2. Distinction between a Production Order and an Order for Habeas Corpus.

A production Order is an order given by the Magistrate courts as well as the High Court, to
secure the attendance of a person confined in a prison within the local limits of jurisdiction.
The court may issue an order for the officer in charge of that prison requiring him to bring the
prisoner in proper custody at a time to be named in the order, before court. Such order is referred
to as production order. The officer in charge must provide for the custody of the prisoner during
his absence from the prison.6
If the person in respect of whom an order is made under section 47 is not present in court, the
magistrate shall issue a summons requiring him to appear, or, when the person is in custody, a
warrant directing the officer in whose custody he is to bring him before the court: Provided that,
whenever it appears to the magistrate upon the report of a police officer or upon other
information (the substance of which report or information shall be recorded by the magistrate)
that there is reason to fear the commission of a breach of the peace, and that a breach of the
peace cannot be prevented otherwise than by the immediate arrest of the person, the magistrate
may at any time issue a warrant for his arrest.7

Conversely, the writ of Habeas Corpus as discussed previously is concerned with the
determination of whether a person is lawfully detained. It is a mandate only exercisable by the
High Court.
The writ is directed to one or more persons who are alleged to be responsible for the unlawful
detention and it is a means whereby the most humble citizen... may test the action of the
executive government no matter how high the position of the person who ordered the detention.
6 Patrick Kiage, essentials of criminal procedure in Kenya, law Africa publishing, revised 2013; page 42
7 Section 49 Criminal Procedure Code Cap 75 Laws of Kenya
7

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.8

3. Instances where the remedy of Habeas Corpus may be invoked.

The procedure in applying for directions in the nature of habeas corpus is laid out in
TheCriminal Procedure (Directions in the Nature of Habeas Corpus) Rules being Legal
Notice No.474 of 1963. The same have been created by the Chief Justice in exercise of his
mandate as under Cap 75.
3.1 Immigration
In Salim Awadh Salim & 10 others V Commissioner of Police & 39 others the court was of the
view that due process must be followed when deporting persons and that the issue of national
security must not be used as a blanket statement to usurp the rights and freedoms to liberty and
fair trial as under the Constitution.

3.2 Extradition
The Extradition(Contiguous And Foreign Countries) Cap 76 Laws of Kenya under section 9(1)
requires a Magistrate to inform a fugitive criminal before committing him to prison of his right to
apply for the issue of directions in the nature of habeas corpus. Further section15(2) entitles a
detainee the right to apply for directions in the nature of habeas corpus, which order is subject to
appeal at the high court.10
National security considerations were also cited in the case of Zuhura Suleiman vs. - The
Commissioner of Police & 2 Others11in which the subject was arrested in Kenya and extrajudicially removed to Uganda without extradition proceedings. In holding that the removal was
8Ibingira & Others vs.- Attorney-General of Uganda [1966] E.A. 445
9Salim Awadh Salim & 10 others V Commissioner of Police & 3 Petition No. 822 Of 2008
10 Section 15(2) Cap 76: Without prejudice to any application for directions in the nature of a writ of habeas corpus
in respect of anything purporting to be done under this Part of this Act, any order or refusal to make an order of
discharge under subsection (1) of this section may be the subject of an appeal to the High Court.
11Zuhura Suleiman vs.- The Commissioner of Police & 2 OthersHigh Court Misc. Application No. 441 of 2010
[2010] eKLR
8

unlawful and unjustifiable and thus a violation of his fundamental rights, even on the ground of
suspicion of engaging in terror activities, Muchelule J stated as follows:
I find that no exceptional circumstances, whether state of war or terrorist actions, can be
invoked to justify the treatment handed down to the subject herein by the Respondents. I find that
the return made by Inspector Ogeto was not sufficient and that the arrest, detention and removal
of the subject from Kenya to Uganda were illegal and transgressed his fundamental rights and
liberties. These rights and liberties cannot be given up for expediences sake.

3.3 Court Martial

This is provided for under The Criminal Procedure (Directions in the Nature of Habeas Corpus)
Rules being Legal Notice No.474 of 1963, particularly;
(d)that any prisoner so detained be brought before a court martial or commissioners
acting under the authority of a commission from the President for trial to be examined
touching any matter pending before the court martial or commissioners respectively.

3.4 Involuntary Committal to Psychiatric Institution

This is provided for under The Criminal Procedure (Directions in the Nature of Habeas Corpus)
Rules being Legal Notice No.474 of 1963, particularly;
(b) that any person illegally or improperly detained in public or private custody within
those limits be set at liberty;
Under the Mental Heath Act Cap 248 Laws of Kenya, a person who is suffering from mental
disorder and is likely to benefit by treatment in a mental hospital but is for the time being
incapable of expressing himself as willing or unwilling to receive treatment, may, on a written
application under this section, be received into a mental hospital as an involuntary patient for
treatment.12
An application under this section shall be made in the prescribed form to the person in charge
and shall be made
(a) by the husband or wife, or by a relative, of the person to whom it relates; or
12Section 14(1)Mental Heath Act Cap 248 Laws of Kenya
9

(b) if there is no husband, wife or relative available or willing to make an application, by any
other person who shall state in his application the reason why it is not made as provided under
paragraph (a), the connection of the applicant with the person to whom the application relates
and the circumstances in which the application is made.13
You may not be admitted purely because you are suffering from a personality disorder, are
socially deviant or addicted to drugs or intoxicants.
It therefore follows that a private citizen can cause another to be committed involuntarily in a
mental hospital; the nature of the custody is thus private. Consequently, one so committed can
challenge the same based on the above provision of the law and seek for directions in the nature
of habeas corpus.

13Section 14(2)Mental Heath Act Cap 248 Laws of Kenya

10

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
CRIMINAL DIVISION
CRIMINAL MISC.CAUSE NO.OF 2014
JILL BIRYA ...APPLICANT
VERSUS
INSPECTOR GENERAL OF POLICE..RESPONDENT

CERTIFICATE OF URGENCY
I BRENDA ATIENO, an advocate of the high Court of Kenya practicing under the name and
style of Firm 1H & Company advocates, and being in conduct of the matter, do certify this
application as urgent and deserving to be heard on priority basis because the subject of this
application, HABENGA BRIYA, the applicants husband, is being held by the respondent
incommunicado and his fundamental human rights are continually being breached, and therefore,
he stands he to suffer irreparable harm in the hands of the respondent unless this honourable
court intervenes.
Dated this 20th Day of October 2014
BRENDA ATIENO
ADVOCATE FOR THEAPPLICANT
DRAWN & FILED BY:
Firm 1H& Company, Advocates
KSL House, Ground Floor, Room No. 105
South Langata road
P.O BOX 1234-00200
NAIROBI
11

TO BE SERVED UPON:
The Director of Public Prosecutions
NSSF Building, 19th Floor
NAIROBI
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
CRIMINAL DIVISION
CRIMINAL MISC. CAUSE NO.OF 2014
JILL BIRYA ...APPLICANT
VERSUS
INSPECTOR GENERAL OF POLICE..RESPONDENT

CHAMBER SUMMONS
(Under Article 51(2) and 25(d) Constitution of Kenya 2010, Section 389 Criminal
Procedure Code Cap 75 Laws of Kenya and all other enabling provisions.)
LET ALL PARTIES CONCERNED attend the Honourable Judge in Chambers on the
.day of..2014 at 9.00 O Clock in the forenoon
or so soon thereafter as advocate for the Applicant can be heard on an Application FOR
ORDERS :
1. THAT this matter be certified urgent and heard exparte in the first instance.
2. THAT an order in the nature of habeas corpus do issue directed to the Respondent, to
have the body of HabengaBriya produced before this honourable court on 21st October
2014 or such a time as the honourable court may direct.
3. THAT the applicant be released on bail on reasonable terms pending the hearing and
determination of this application.
4. THATcost of this application be borne by the respondent.
12

AND WHICH application is premised on the following grounds:

1. THATon17th July, 2014 at about 4.30 a.m.,MrHabengaBriya(hereby called the subject)
was arrested at his residence in Rongai, Kajiado County, by police officers from the AntiTerror Police Unit.
2. THAT the Applicant was initially held inCentral Police Station. The applicants effort to
trace him at the station was unsuccessful as he was said to have been transferred to Lamu
for advanced interrogation.
3. THAT the applicant was last seen handcuffed at Kamkuji Police Station in Marsabit and
was whisked to an unknown location.
4. THATit has been seven days since the subject was arrested and he is yet to be arraigned
in court nor charged for any offence.
5. THAT the applicant has not been allowed to communicate with the subject as the subject
is being detained incommunicado.
6. THAT the continued detention of the Applicant is a gross violation of his fundamental
right to freedom.
ANDwhich application is further supported by the affidavit of JILL BRIYA and other reasons
and grounds to be adduced at the hearing hereof.
DATED AT NAIROBI THIS..DAY OF.2014
BRENDA ATIENO
ADVOCATE FOR THEAPPLICANT
DRAWN & FILED BY:
Firm 1H& Company, Advocates
KSL House, Ground Floor, Room No. 105
South Langata road
P.O BOX 1234-00200
NAIROBI
TO BE SERVED UPON:
The Director of Public Prosecutions
NSSF Building, 19th Floor
NAIROBI
13

NB: If any party served does not appear at the place and time abovementioned, such orders will
be made and proceedings taken as the Court will deem just. and expedient..

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
CRIMINAL DIVISION
CRIMINAL MISC. CAUSE NO.OF 2014
JILL BIRYA ...APPLICANT
VERSUS
INSPECTOR GENERAL OF POLICE..RESPONDENT
SUPPORTING AFFIDAVIT
I, JILL BIRYA a resident of Rongai, Kajiado County and of P.O Box 12345-00100
Nairobi do solemnly swear and state as follows:
1. THAT I am an adult female of sound mind, the wife of HabengaBriya and conversant
with facts leading to this application hence competent to swear this affidavit.
2. THAT on 17th July 2014 at about 4.30a.m while we were asleep at our residence in
Rongai, we were woken up by hoarse voices that were demanding that we open the door
to our house.
3. THAT my husband immediately called the police hotline under distress and reported that
our house was under attack, the call which was received by a corporal by the name
Agnes Guantai from the police control room.
4. THAT my husband told me, which information I verily believe to be true, that after
reporting, the officer informed him that a police operation was underway and advised him
to remain calm, before disconnecting the call without further elaboration.

14

5. THAT at about 4.45 a.m., my husband called Officer Commanding Station, Rongai
Police Station, known as Ms.Chelimo and who is his personal friend. Mrs Chelimo
confirmed that the strangers were police officers, and informed my husband, which
information I verily belief to be true, that whatever was happening at our home was a
high level police operation ordered by the honourable Cabinet Secretary for Interior and
Coordination. That the reason of the operation was because my husband was allegedly
selling land in Kajiado County, and which belonged to the father of an influential
politician in the county.
6. THAT Ms Chelimo advised my husband to surrender.
7. THAT my husband surrendered and opened the door.
8. THAT after opening the door, the head of the police team that had surrounded our house,
known as Commander Cindy Majanja, entered our house with about 20 other. For the
next half an hour, the officers went on rampage, searching every corner of the house.
9. THAT the officers seized two computers and a bag of maize floor which they claimed
was a chemical for making bombs, despite my husbands insistence that it was maize
floor.
10. THAT my nephew, Mr.Hustler Barabara, informed me that he had
overhead officers who were searching one of the bedroom, and which
information I verily believe to be true, say that my husband was the
Kajiado County Coordinator for a matatu extortionist group called Jeshi
la ZungukaMbuyu.
11. THAT I am aware that Jeshi la ZungukaMbuyu is thought within police and
intelligence circles to be to be affiliated to a Somalia based terror
organization calledMujahideen bin Duwa.
12. THAT after arrest, my husband was initially held at Central Police Station. However, my
efforts to trace him at the police station were unsuccessful, as I was told that he had been
transferred to Lamu for advanced interrogation.
15

13. THAT on 22nd July 2014, I received a call from my cousin Ms. Ndugutse,
who is a trader in Marsabit. She informed me, which information I verily
believe to be true, that he had seen my husband at Kamkuji Police
Station in Marsabit in handcuffs, and was later whisked to an unknown
location.
14. THAT my husband has not been arraigned in any court of law to date nor charged of any
offence.
15. THAT i am afraid for my husbands security and welfare as no one knows the condition
that he is being held in.
16. THAT what is stated above is the truth to the best of my knowledge, information and
belief.
SWORN at NAIROBI by the said
JILL BIRYA
This..day of..2014
BEFORE ME:
COMMISSIONER FOR OATHS
DRAWN & FILED BY:
Firm 1H& Company, Advocates
KSL House, Ground Floor, Room No. 105
South Langata road
P.O BOX 1234-00200
NAIROBI
TO BE SERVED UPON:
The Director of Public Prosecutions
NSSF Building, 19th Floor
NAIROBI

16

)
)
)
DEPONENT
)
)
)
)

RE: LEGAL OPINION ON THE REMEDY OF THE ORDER OF HABEAS CORPUS AND
ITS AVAILABILITY IN KENYA.
Mrs. Jill Briya please be advised as that;
This legal opinion is prepared following your meeting between yourself and Ms. Brenda Atieno
of Firm 1 H& Company Advocates, and we are pleased to advise you as hereunder.
Summary of facts
On 17th July, 2014 at about 4.30 a.m. unknown people numbering about 50 surrounded your
residence at RongaiKajiado demanding ingress. Mr. Birya, your husband, called the police
hotline under distress reporting that his house was under attack. A corporal Agnes Guantai from
the police control room answered the call and advised him to be calm as a police security
operation was underway and, without elaborating further, she disconnected the call.
Mr. Birya

called

the

Officer

Commanding

Station,

Rongai

Police

Station,

Ms.

PhilemonaChelimo at about 4.45 a.m. who is his personal friend. Ms. Chelimo informed him that
indeed whatever was happening at his home was a high level police operation ordered by the
honorable Cabinet Secretary for Interior and Coordination. Ms. Chelimo further advised him that
she thought the reason as to why the police wanted to arrest him was because Mr. Birya has
reportedly been selling land in Kajiado County that belongs to the father of an influential
politician in Kajiado County. She advised Mr. Birya to surrender to the police.
Upon Mr. Birya surrendering to the police and opening the door to the house, the head of the
police team, Commander Cindy Majanja entered

with 20 other officers and searched it

repeatedly seizing two computers and some powder described by Mr. Birya as maize flour but
which the police think is bomb making material. As the police were searching one of the
bedrooms in the house, your nephew, Mr. Hustler Barabara, overheard Commander Majanja say
that Mr. Birya is believed to be the Kajiado County Coordinator for a matatu extortionist group
called Jeshi la ZungukaMbuyu. Jeshi la ZungukaMbuyu is also thought, within the police and
intelligence circles, to be affiliated to a Somalia based terror organization Mujahideen bin Duwa.
Mr. Birya was taken into custody and initially taken to Central Police Station in Nairobi. Efforts
to trace him at the Central Police Station on 19 th July, 2014 did not bear any fruit as he was said
to have been transferred to Lamu County for advanced interrogation. On 22 nd July, 2014 Ms.
Beatrice Ndugutse, your cousin and a resident of Marsabit, via a telephone call informed you that
17

she had seen Mr. HabengaBirya at Police Station in handcuffs and that he was whisked to an
unknown location.
Issues Arising
From the foregoing, several issues emerge namely;
1. Whether the arrest of Mr. Briya was lawful.
2. Whether the search and seizure exercised was lawful.
3. What rights does Mr. Briya as a detainee have?
Rules of Law applicable to the issues arising
1. The Constitution of Kenya 2010
2. The Criminal Procedure Code Cap 75 Laws of Kenya
3. The United Nations Declaration of Human rights
4. International Convention on Civil and Political Rights
5. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment
6. The Convention Governing the Specific Aspects of Refugee Problems in Africa
7. The African Commission on Human and Peoples Rights
8. Judicial Precedents
Application of the Rules
The first issue to determine is whether the arrest of Mr. Briya was lawful.
The Oxford Dictionary of Law defines an arrest as; the apprehension of a person suspected of
criminal activities. Most arrests are made by police officers, although anybody may, under
prescribed conditions effect an arrest.14
Lord Devlin in Hussein v Chang Fook15 stated that an arrest occurs when a police officer states
in certain terms that he is making an arrest or occurs when an officer uses force to restrain the
14 Oxford Dictionary of Law 5th Edition (2003)
15Hussein v Chang Fook[1970]2 WLR 441
18

individual concerned or occurs when by words or conduct the officer makes it clear that he will
use force if necessary to restrain the individual from going where he wants to go; but does not
occur where he stops an individual to make inquiries.
The Criminal Procedure Code as under section 100-107 and section 29provides for the effecting
of an arrest either with or without a warrant respectively. This will depend on the nature of the
offence.
From the foregoing, we can rightly deduce that for an arrest to amount to a lawful arrest the
following conditions must be present;
a) It may be effected by a police officer or anybody under certain conditions,
b) The Police officer must state in certain terms the reason for the arrest,
c) Reasonable force has been exercised to restrain the suspect or
d) A clear imputation by word or deed that the police officer will use reasonable force to
restrain the suspect if need be
From the facts at hand, it is clear that the arresting officers did not inform Mr. Briya of the reason
and nature of his arrest even after he made efforts to obtain the same from them. Unconfirmed
information from the Officer Commanding Police Rongai Police Station, Ms. PhilemonaChelimo
however revealed that the reason for his arrest was due to his involvement in a fraudulent sale of
land.
However, it was later determined that his arrest was accredited to his involvement with a matatu
extortionist group called Jeshi la ZungukaMbuyu ,also thought to be affiliated to a Somalia
based terror organization Mujahideen bin Duwa, which information was never relayed to Mr.
Briya.
The Constitution as the supreme law entitles all citizens to freedom and security. This right
includes the right not to be deprived of freedom arbitrarily or without justice.16 On arrest, an
arrested person has the righta) To be promptly informed in a language that the person understands, of(i)

The reason for the arrest

16 Article 29 The Constitution of Kenya 2010

19

(ii)

The right to remain silent; and

(iii)

The consequences of not remaining silent;

b) To remain silent;
c) To communicate with an advocate and other persons whose assistance is necessary; 17
An arrested person is required to be arraigned in court as soon as reasonably possible but not
later than twenty four hours after being arrested or if twenty four hours ends outside the ordinary
court hours, or on a day that is not an ordinary court, the end of the next court day.18
There is a vast foundation of the early arraignment of an accused person that reaffirms the same
mainly aimed at ensuring key being Ann Njogu& 5 others versus Republic.19
Kenya as a member of the international community has ratified some covenants and conventions
that have subsequently formed part of our sources of law as under Article 2 (6) of the Kenyan
Constitution. For example the International Convention on Civil and Political Rights under
Article 9(2) enshrines the right of an accused person to be informed at the time of arrest the
reasons for the same and of any charges against him or her.
Detaining individuals without allowing them contact with their families and refusing to inform
their families of the fact and place of the detention of these individuals amount to inhuman
treatment both of the detainee and their families.20
On his arrest on the 17/7/2014 Mr. Briya was taken into custody at the Central Police Station. As
at 22/7/2014, five days after the day of arrest, Mr. Briya was seen at MarsabitKamkunji Police
Station in handcuffs being transported to another location. This continued detention and
prevention of access to Family members and legal counsel is in direct violation of Mr. Briyas
constitutional rights as explained above.

Secondly, whether the search and seizure exercised was lawful?

17 Article 49 The Constitution of Kenya 2010
18 Article 49 (f) The Constitution of Kenya 2010
19 Ann Njogu& 5 others versus Republic Criminal App. No. 551 of 2007 (HC)
20Law Office of Ghazi Sulaiman v. Sudan, African Commission on Human and Peoples Rights ACHPR (1994) at
para.44.
20

The primary source of law regarding search and seizure is the Kenyan Constitution as under
Article 31. The right to privacy covers the person, home, property and possession seized.
As such, before one can conduct a search, a search warrant is required by the police. The search
warrant shall contain the name or description of the thing sought and if it be found, to seize it and
take it to the court having jurisdiction to deal with it according to the law.
In Standard Newspapers Limited & Another v The Attorney General & 4 others21the High
Court held that everyone has a right to privacy and as such to be secure against unreasonable
search or seizure.While it is true that police have a duty to prevent commission of crimes, they
must, just likeeveryone else, abide by the law, and there must be due process in everything that
they do inexercise of their mandate to prevent the commission of crime.

Lastly, what rights does Mr. Briya have as a detainee?

Article 51 (2) as read together with Article 25 (d) of the Constitution prescribes a detainee or one
held in custody with the right to petition for an order of habeas corpus, which right is nonderogable.
The right to habeas corpus is also anchored in statute under the Criminal Procedure code section
389.
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 should the court hold that he is unlawfully restrained.22
The order is directed to the detaining authority to show cause as to why the detainee is in custody
and failure to comply may result in contempt proceedings against all persons to whom the order
is directed.
In Mohamed vs. - Attorney-General & 3 Others 23 the court was of the view that while terrorism
is a heinous crime against any country and its people, this is no excuse for violating the statutory
provisions relating to the arrest and detention of a suspect.
The police while conducting their operations should not lose sight of the criminal law
21Standard Newspapers Limited & Another v The Attorney General & 4 others [2013] eKLR
22Ibingira& Others vs.- Attorney-General of Uganda [1966] E.A. 445
23 In Mohamed vs.- Attorney-General & 3 Others [2003] K.L.R. 338
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presumption of innocence in favour of the suspect and accord him all the rights and fundamental
freedoms entitled to him.
The order is also sought in cases where suspects have not been taken to court within the
stipulated time (24hours) and the police or prosecuting authorities have failed to state sufficient
reasons as to why they have not done so. The courts have held such violations to be unacceptable
and capable of violating the right to be tried within a reasonable time as under the Constitution.
A successful application for the writ of habeas corpus will result in the immediate release of
Mr.Briya from police custody. He will also be entitled, should the case necessitate it, to be
released on reasonable bail terms as the court may direct as it considers our application for the
writ of habeas corpus. The court may also in its discretion award us costs for the application
made.
Conversely, should the Anti-TerrorismPolice Unit succeed in convincing the court of the validity
of Mr.Briyas continued detention then Mr.Briya shall continue to be detained subject to him
being accorded various safeguards regarding his detention.
Conclusion
In conclusion, it is our firm belief that the application for habeas corpus has a strong probability
of success based on the vast judicial precedent cited herein and otherwise all of which are in our
favor.The constitution being the supreme law guarantees the right to habeas corpus to detainees
as a non derogable right further cementing our chances of success.

Recommendation
We highly recommend moving with speed as the more time Mr. Briya spends in detention the
more critical his situation becomes. Filing the application for directions in the nature of habeas
corpus should therefore be done as soon as possible.

Yours Faithfully,
Brenda Atieno

FIRM 1H & CO ADVOCATES

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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL MISCELANEOUS CAUSE NO.OF 2014
HABENGA BRIYA..APPLICANT
VERSUS
INSPECTOR GENERAL OF POLICE RESPONDENT

RESPONDENTS WRITTEN SUBMISSIONS

May it please the court; the respondents wish to make their submissions as here under;
FACTS OF THE CASE
On 17th July, 2014 at about 4.30 a.m. 50 police officers from the Anti- Terrorism Police Unit
proceeded to the Applicants House at Rongai Kajiado County, on instructions from the Cabinet
Secretary for Interior and Coordination. The Applicant at first failed to cooperate with the
officers by refusing them entry.
The Applicant visit to the Applicants home was necessitated by the Applicants ties to the
Kajiado County matatu extortionist group Jeshi La Zunguka Mbuyu as the Kajiado County
Coordinator. The same group is also believed within the intelligence and police circles to be
affiliated to a Somali based terror organization Mujahiden bin Duwa
While at the Applicants house, the Police Officers under the command of Commander Cindy
Majanja and after the Applicant surrendered to the police, searched and seized two computers
and some powder highly believed to be used in the manufacturing of bombs.
The Applicant was then arrested and taken into police custody at Central Police Station, Nairobi.
He was later transferred to Lamu County for advanced interrogation on 19 th July, 2014. The
Applicant is still being held for further investigations.
ISSUES ARISING
1. Whether the Applicant has been and is being illegally detained.
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The Applicant was arrested on 17th July, 2014 after a series of credible investigations were
conducted which proved his key role in a matatu extortionist group which has been an immense
security concern, Jeshi La Zunguka Mbuyu. The Applicant is the groups county coordinator
and as such, at the center of the groups strategic and tactical force. The same group has with a
Somali based terror organization, Mujahiden bin Duwa. The groups ties have been confirmed
in the intelligence as well as the police circles.
Section 35 of the Prevention of Terrorism Act empowers police officers to limit the rights and
freedoms of suspects for the purposes of ensuring the investigation, detention and prevention of a
terrorist act and that the enjoyment of the rights and freedoms by an individual does not
prejudice the rights and fundamental freedoms of others.
Section 35(3) particularly lists those rights as those relating to privacy, and the constitutional
rights of an accused person as under Article 49(1) (f).
The rights of an arrested person specified under Article 49(1)(f) of the Constitution may be
limited only for purposes of ensuring

(iii), the prevention of the commission of an offence under this Act and the
preservation of national security,in accordance with section 26.
(d), the freedom of security of a person to the extent of allowing investigations under this Act;
(e), the right to property to the extent of detaining or confiscating any property used in the
commission of an offence under this Act.24
A terrorist Act has been defined under the act to include acts which;
(ix)prejudices national security or public safety; and
(b), which is carried out with the aim of
(i), intimidating or causing fear amongst members of the public or a section of the
public25
24Section 35 Prevention of Terrorism Act 2012 Laws of Kenya
25 Section 2(1)Prevention of Terrorism Act 2012 Laws of Kenya
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The Applicant has been linked to a local matatu extortionist group, Jeshi La Zunguka Mbuyu.
Credible information shows him as being the groups county coordinator. This group has been
extorting the public all with the aim of financing the activities of its affiliate terror organization,
Mujahideen bin Duwa. The reasonable suspicion of the Applicant is thus based on these
evidentiary sources.
Terrorism is a matter of grave national importance and the police force is dedicated to stemming
out any and all undesirable elements in our society. As such, the police have been empowered as
earlier stated to limit the fundamental rights and freedoms of those suspected to be engaged in
terror acts of any kind.
Moreover, the Penal Code under section 36 allows the detention of a suspect for more than
24hours where the officer commanding police station after inquiry into the case, establishes that
the offence is of a serious nature. Needless to say, terrorism is a matter of national security. The
safety of citizens is a governments top concern.
The powder found in the Applicants house is further proof of his culpability as the same is used
in the manufacture of explosives. Good police work requires one to act on reasonable suspicion,
the intel gathered from the intelligence as well as the police circles highly indicate that the
Applicant is affiliated to a terrorist group.
With regard to his detention, the Act as previously discussed authorizes the police to limit a
suspects rights as under Article 49(f) of the Constitution. The right to be brought before a court
therefore is subject to such limitation. Due to the delicate nature of the investigations, much time
and effort must be expended in order to get accurate and actionable information from the suspect,
which will aid in the investigation. The Applicants detention serves to discourage the activities
of the Jeshi La Zunguka Mbuyu group as being the county coordinator he is unable to organize
activities that are detrimental to national security.
From the forgoing, we urge the court to dismiss the application and award costs accordingly.

DATED AT NAIROBI THIS..DAY OF.2014

DIRECTOR OF PUBLIC PROSECUTIONS

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ADVOCATES FOR THEAPPLICANT

DRAWN & FILED BY:
The Director of Public Prosecutions
NSSF Building, 19th Floor
NAIROBI
TO BE SERVED UPON:
Firm 1H & Company
Advocates
KSLHouse, Ground Floor,
P.O BOX 1234-00200
NAIROBI

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