The good and the bad of the Abshir disappearance ruling

On November 10, 2026, Justice Alexander Muasya Muteti delivered a ruling that many lawyers had been waiting for. The case concerned Advocate Abshir Ahmedsadak Abdi, who disappeared on the night of October 31, 2026 after telling his brother he was going to a wedding in Kilimani. That was the last anyone heard from him. The next day his phones were off. His car, registration KDL 356C, was found abandoned in a ditch along Muchai Road.

People who were there told police they had seen the car being chased by a black Land Cruiser Prado TX and a black double-cab. The men in those vehicles, they said, wore tactical uniforms and carried guns in the open. They dragged the driver out and put him in the Land Cruiser. His brother, Zakaria Abshir, went to court and asked for a writ of habeas corpus. In simple terms, he asked the court to order the State to produce his brother, dead or alive, or explain where he was as they should. The answer of the State was that “we do not have him.”

What the good judge did with that answer is what makes this ruling worth reading. He did not accept it as the end of the matter. He also did not reject it outright. He kept the case alive and ordered a full hearing. That decision has drawn praise and criticism in equal measure. Both are deserved. Start with what the judge got right. He reminded the country that habeas corpus is a right under Article 25 of the Constitution and it cannot be limited. He quoted Magna Carta and the old English writer AV Dicey to make a simple point. No one can be locked up, or taken away, except according to law. If the State takes a person, the State must account for him. He also dealt firmly with a complaint from the advocates of the State. They argued the court had already judged them by issuing a writ nisi and asking them to show cause why Abshir should not be released.

The court had a different opinion. A writ nisi, he said, is to ascertain whether the State has been given enough reason to answer. Come and answer. That is how habeas corpus has always worked in Kenya, India and England. The person who holds the prisoner must justify the detention. The judge went further. He affirmed that the writ can go to commanders, not just the junior officer who may have carried out an arrest. That matters in a disappearance case. If the court only summons the constable on duty, that officer can truthfully say he was acting on orders. The order must reach the people who give orders and who can give the order to release.

He also rejected the easiest escape route for the State. The State argued, in effect, that since Abshir had not been produced, the case could not proceed. The court maintained that production is the usual aim of habeas corpus, but it is not a condition for hearing the case. If it were, no disappearance case would ever be heard. The State could simply deny custody and the court would be powerless. Article 25 would mean nothing in the circumstances.

To support that view, he looked to the Philippines, where courts developed the writ of amparo after finding that ordinary habeas corpus failed when security agents denied holding people they had taken. Kenya, the judge held, should not be different. There is also the history in this case. Abshir had been arrested in October 2025 by officers from the Counter Terrorism Bureau, later joined by officers from the National Intelligence Service and military intelligence. The Director of Public Prosecutions declined to approve custodial orders. Abshir was released. He complained to oversight bodies. Nothing happened. Muteti did not treat that as background lightly. The court held that it raised the need for closer scrutiny. He asked, without answering, whether frustration over failed court processes could have pushed anyone towards acting outside the law. That question will have to be answered with evidence at the full hearing.

So far, so good. The ruling reads like a judge who understands the stakes and the power imbalance between private citizens and the state in cases of disappearance. The problem starts where the ruling stops. The State called four witnesses to say Abshir was not in its custody. The judge chose not to decide whether that explanation was good enough. He said that question should wait for the full hearing, so as not to prejudice the outcome.

Habeas corpus is meant to be urgent. Its power lies in speed. When the court pushes the real test to a later date, the emergency remedy starts to look like an ordinary civil case. Meanwhile, a man is still missing. CCTV footage can be overwritten. Phone records can be lost. Witnesses can be scared off. The ruling also gives no practical orders. The judge did not order the preservation of CCTV along Muchai Road and Ngong Road. He did not order the preservation of occurrence book entries, call data or command logs.

The court did not, at minimum, direct the police to report back to court at set intervals on what they had done to trace Abshir. The court simply held that the applicant could now take the stand. That leaves the heaviest load on the person least able to carry it. The court in, my view, could have at least ordered the State to start using that capacity, and to show its work. This is so because the State holds both negative and positive duty towards the Bill of Rights. The court noted that in the Willy Kimani case, the State showed it could solve a disappearance when it wanted to. That case involved the kidnap and murder of the advocate in 2016. The investigation eventually produced convictions. The ruling mentions that capacity. The judge asked the question posed by Senior Counsel Eric Theuri, that is “in whose hands are we safe?” He answered that we are safe in the hands of the State. He further referred to the public assurance that Kenya is safe. That further, liberty must not be left to the mercy of absolute power. The court warned that a mere denial from the State must never be allowed to pass.

For now, though, that is what has happened. A denial, followed by directions for a hearing. None of this makes the ruling a failure. It rejects the idea that a denial ends the matter and ultimately, it opens the door to evidence. In a country with a long and painful history of disappearances, that counts for something.