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Police IG, DCI chief seek lifting of order requiring them to appear in court

Inspector General of police Douglas Kanja and the Director of Criminal Investigations Amin Mohamed now want the court to lift orders requiring them to personally appear in court to explain the whereabouts of the three Mlolongo abductees claiming they were served with the summons late.
Through their lawyer Paul Nyamondi, the security chiefs said they were served with the summons at 1.30 pm yesterday via email.
According to Nyamondi, the summons was allegedly only seen by the officials this morning and hence their inability to attend court.
“We were served with the summons via email yesterday afternoon, and it wasn’t until today that we saw it,” Nyamondi told the court.
He further argued that email service is not a recognised mode of legal notification, stressing that his clients had not been given an adequate opportunity to respond or present their case before the court issued the orders.
He further emphasised that the National Police Service is not a party in the case.
At the same time, Nyamondi revealed that Kanja and Mohamed have filed an urgent application seeking to have the court’s orders compelling their personal appearance lifted.
They aver that the  misled by the petitioners’ lawyers, who stated that they had been served with the necessary pleadings dated January 8, 2025, requiring them to produce the three individuals—Justus Mutumwa, Martin Mwau, and Karani Muema in court, alive or dead.
“Unless this application is certified urgent and heard promptly, there is a grave danger of miscarriage of justice following from the orders issued on January 13, 2025, requiring us to produce the three missing men in court on January 17, 2025, which orders were not served on us,” Kanja and Mohamed argued in their application.
Nyamondi says that the two top police chiefs have been condemned unheard before the orders were issued.
“I have instructions that Kanja and Mohamed do have responses to the disappearances. We beseech you to lift the ex-parte orders issued compelling them to appear and explain. It is extremely prejudicial  to our clients for such orders to be issued and under Article 50 have right to be heard before any orders are issued,” Nyamondi says
Nyamondi emphasised the technical nature of the issue, highlighting that the service of the court orders via email was improper.
“I am at pain to explain this morning that the service of the orders was not effected to my clients,” he told the presiding judge Justice Chacha Mwita.
Meanwhile, the Interior Cabinet Secretary Kipchumba Murkomen has also filed an application to be removed from the abductions 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 the Interior.
In a separate development, 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 stated that the issues raised by Maanzo regarding access to the court were administrative in nature and should be addressed by the deputy registrar.
 “The matter you have raised is an administrative issue, and you should formally address it to the deputy registrar,” Mwita said, urging Maanzo to follow the proper procedural channels.
The petitioners, led by the Law Society of Kenya (LSK), through lawyer Nyawa Malidzo, opposed an application seeking to set aside interim orders issued by the court.
He stated that the orders were granted earlier this month to compel the appearance of certain individuals, Kanja and Mohamed, in court regarding a case of missing persons.
The petitioners argue that the court has the power to grant appropriate relief under Article 23 of the Constitution, which allows the court to issue interim orders to protect human rights. citing the 2014 Supreme Court ruling in the Peter Munya case, the petitioners maintained that such interim orders are issued to uphold the Constitution and safeguard citizens’ rights.
“We submit that this court has jurisdiction to grant these orders, and Rule 23 of the Mutunga Rules allows this court to issue ex-parte relief orders where necessary,” said Malidzo during the proceedings.
The court was asked to consider whether the relief sought was appropriate when the application and petition were initially filed. The petitioners argued that the absence of the individuals in question, Kanja and Mohamed should not be used as grounds to question their rights to a fair hearing, as the court had already granted them the opportunity to appear but they failed.
On the issue of public interest, the petitioners emphasized that lifting the orders would hinder the enforcement of constitutional rights. They pointed out that strict adherence to the constitution is paramount, particularly in cases where the right to life may be threatened.
“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.
The petitioners also addressed concerns over the service of court documents to the respondents, the Inspector General (IG) of Police and the Directorate of Criminal Investigations (DCI). Florence Muturu, the CEO of the first petitioner, stated that court 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,” Muturu emphasized.
In response,  Nyamondi argued that the application for habeas corpus orders should not be granted, as there was no concrete evidence that the missing individuals were in police custody.
He further stated that it would be prejudicial to compel the authorities to produce the individuals without clear evidence of their involvement in the case.
“The allegations in this case are not substantiated, and there is no evidence that the missing persons are in the custody of the national police,” Nyamondi argued.
They concluded by emphasising that the primary goal of their petition is to locate the missing persons, and that setting aside the court orders would obstruct the delivery of justice. They urged the court to dismiss the application and confirm the orders granted on January 8th and 13th.
The court will deliver its ruling on the matter next Thursday.
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