Habeas Corpus Case of Daniel Baru Nyamohanga and Rebecca Boke Mwita Vs Officer Commanding Station- Kehancha Ruling at the Migori High Court Petition No. 2 of 2017 on 30 July 2018
On 12 January 2017 at approximately 6:00 pm. Daniel Boru was arrested while aboard motor vehicle registration number KBX 322E at Kehancha Market by administration police officers from Kehancha Administration Police Post. He was arrested alongside other persons. All the arrested persons were taken to Kehancha Police Station. The arrests of Boru and the other 5 arrested persons were only recorded in the Occurrence Book (OB) on 13 January 2017 at 8:00 pm. According to the relevant entry in the OB (OB No. 28/13/1/2017) the six were suspected of committing the offence of robbery with violence. Notably, the police records do not name any complainant. Boru was not told why he had been arrested and was being detained.
On 16 January 2017, he, together with the people arrested alongside him, were driven to the compound of Kehancha Law Courts. They were however not presented before a court but instead driven back to Kehancha police station and locked in the cells. On 17 January 2017, the 5 people who were arrested alongside Boru were taken to Kehancha Law Court, bonded to keep peace and later released. He remained behind in the cells. The wife went to see her husband the following day but was not allowed but she was able to see him on 14 January 2017 at around 10:00 am. Baru was then taken to Kehancha Law Courts on Monday, 16 January 2017 at around 9:00 am but was not arraigned with others and was taken back to the cells. His wife said she followed him to the Kehancha Police Station where she saw him but was not allowed to speak to him. She again visited the police station the following day at 9:00 am and saw those who had been arrested alongside her husband taken to court and released while her husband did not accompany them to the court. From the court, she went back to the police station where she managed to speak to her husband around 4:00 pm.
The father of three told her that he had asked for Kshs. 35,000 that was taken away from him when he was arrested and he was separated from the others. She came back at the station the following day requesting to see her husband but was told at the report office and by the Officer Commanding Police Station (OCS) that he had been released the previous day.
Considering this the Kenya National Commission on Human Rights (KNCHR) filed a habeas corpus on behalf of the family with the National Coalition of Human Rights Defenders – Kenya (NCHRD-K), Amnesty International, the International Justice Mission (IJM) and Nairobi’s Justice Centre Working group providing support and solidarity.
On 29 July 2018, NCHRD-K joined by the members of Nairobi Justice working group traveled to Migori High Court for the ruling which was to be given on 30 July 2018. In the ruling Justice A. C Mrima noted the way the evidence unfolded related to how the police carry out their duties especially within a police station more so in relation to the custody and release of suspects. He stated that he had carefully considered the Petition and there was no doubt that the Petition raised serious issues on human rights violations and on the liberty of a citizen despite the respondents hold that Daniel was lawfully released from custody.
His justice ordered that the OSC be held in contempt of court for not producing Daniel physically sighting the respondent’s actions were a way to scatter the matter in court. He further stated that the court established that the OCS’s grounds of misrepresentation i.e. lack of being represented by the agency – the Attorney General’s office is baseless. In relation to this Justice Mrima did not prosecute the OCS for being in contempt of court, rather the following orders were given;
- That the office of the DPP should charge the OCS for the murder of Daniel Baru
- The ODPP should further investigate the murder and bring forth charges against any other officer involved in the matter
- And the order be served within 2 days to the ODPP and responses given within 3 days after serving the order with submissions following and a hearing was set for the 8th of August 2018.
The respondents wanted to place stay on the ruling citing it would be a breach of rights and they were advised to place an application before the court for reversion of the ruling which they did. His Justice declined the application and claims stating that the nature of the case dictated otherwise and if the stay is to be granted it would be contrary to article 35 (d) of the Constitution of Kenya as an Habeas corpus application is an automatic right that should be adhered to thus the orders remained. The respondents agreed on filling an appeal.
Source: National Coalition For Human Rights Defenders.