Havi's arrest at the height of BBI cases to cost State Sh5 million

Former LSK President Nelson Havi arrives for the reading of the BBI verdict at the Supreme Court building on March 31, 2022. [Collins Kweyu, Standard]

The High Court in Kitale has awarded former Law Society of Kenya (LSK) president Nelson Havi Sh5 million in damages following unlawful arrest at the height of the Building Bridges Initiative (BBI) cases in July 2021.

Justice Antony Mrima also quashed investigations by the Director of Criminal Investigations (DCI) into an alleged assault of LSK chief executive Mercy Wambua and described it as unconstitutional, null, and void.

In his petition, Havi alleged that on July 13, 2021, while attending a virtual court session, officers from DCI stormed his office and whisked him away in the full glare of the court.

He was then taken to DCI headquarters, where he was placed in isolated Block B Room 70. After eight hours, he was informed that he was being held for allegedly assaulting Wambua—an incident that occurred on the previous day at LSK offices.

According to the advocate, his arrest was related to the termination of Wambua's employment contract, his pursuit of the audit of LSK funds, and his active role in pursuing public interest litigation.

He said the failure of the DPP and DCI to inform him of the charges he was to face at the point of his arrest was a violation of fair administrative action and the right to a fair hearing.

Havi asked the court to award him Sh20 million in damages for the violation of fundamental rights and freedoms arising from the unlawful arrest.

He said the DPP and DCI had no justification for initiating criminal proceedings against him but were only motivated by the objective of blocking a forensic audit on the bank accounts of the LSK.

In their response, the DPP argued that the petition lacked clarity and precision in setting out the alleged violations concerning the ODPP. They further argued that the petition was premature since the investigations were still ongoing.

During Havi’s arrest, the LSK was in turmoil and entangled in leadership wrangles pitting him on one side and Wambua and some council members on the other.

At that time, Havi was convinced that an audit of the LSK accounts was necessary to unravel allegations of massive misappropriation of funds.

Additionally, there was a protracted employment dispute between the CEO and LSK, characterised by the removal and reinstatement of the CEO.

According to Havi, he was actively involved in handling public interest litigation against the State at the time, and during his arrest, he was representing his clients in the BBI case before the Court of Appeal.

Justice Mrima questioned how the DPP claimed the matter was still under investigation when Havi had never been summoned to record his statement over the allegations.

He also noted that besides detaining the former LSK president for eight hours, Havi was denied access to counsel.

The court acknowledged the actions of DCI officers who arrested Havi during a hearing of the BBI appeal and observed that the action was not only dishonorable to the Court of Appeal but also intended to derail the hearing of the cases.

“They (DCI) neither waited for the Petitioner to complete the Court session nor did they seek the permission of the Judges of the Court of Appeal to arrest him. In such circumstances, the arrest was meant to serve an ulterior motive,” Mrima said.

According to Justice Mrima, the criminal process applied in the case could have been used to settle ulterior motives, and added there were no justifications for the actions taken by the DCI.

Mrima ordered the DPP and DCI to pay Havi for violation of rights and fundamental freedom following his arrest while performing his duties as an advocate.