Court bars police from arresting, detaining lawyer Abdi and friend

The High Court has barred police from arresting or detaining lawyer Abshir Abdi and his friend Ayub Ali pending a ruling on whether they can testify about their 11-day abduction ordeal. [File,Standard]

The High Court has barred police from arresting or detaining lawyer Abshir Abdi and his friend Ayub Ali pending a ruling on whether they can testify about their 11-day abduction ordeal.

Justice Alexander Muteti issued the interim orders after a fierce legal battle in which senior security officials, the Attorney General and the Independent Policing Oversight Authority (IPOA) opposed attempts by the two men to narrate their ordeal in court.

The judge directed that Abdi and Ayub shall not be arrested or charged by the State pending delivery of his ruling on November 23, 2026.

However, the court allowed investigators to summon the two men through their lawyer for questioning, making it clear that ongoing investigations into their disappearance would not be stopped.

The judge directed that the two shall not be arrested or charged by the State pending delivery of the ruling, but clarified that investigations into the allegations can continue.

The court further ordered that any law enforcement agency seeking to question Abdi and Ayub must summon them through their lawyer rather than arresting or detaining them.

In his ruling, Justice Muteti underscored the importance of protecting individual liberties, noting that the fact that someone is a suspect does not strip them of their constitutional rights.

"This court has a constitutional duty to safeguard its processes and ensure that justice is done to all, irrespective of their status," the judge said.

He added that Abdi, despite being under investigation, remains entitled to constitutional protection.

"Yes, Abdi may be a suspect, but he still retains his constitutional rights and dignity," Justice Muteti said.

The judge further emphasised that the right to liberty must not be taken for granted, observing that courts have a duty to intervene whenever an individual's freedom is threatened.

"The court recognises that the right to liberty is so important that when a person expresses fear of the right being violated, the court should intervene and protect the individual," he said.

The judge, however, declined to stop ongoing investigations into the circumstances surrounding Abdi's disappearance and subsequent reappearance, noting that the authorities must be allowed to discharge their investigative mandate.

"There is no telling when those investigations are going to be critical, and the court cannot stop the investigations," he said.

The ruling followed submissions by lawyers representing Inspector General of Police Douglas Kanja, DCI Director Amin Mohamed and other security agencies, who challenged the court's jurisdiction to continue entertaining the habeas corpus proceedings now that the two men had resurfaced.

Senior Counsel Paul Nyamodi, representing the security chiefs, urged Justice Muteti to down his tools, arguing that the court lacked the legal authority to entertain the application seeking to protect the two men from arrest, detention or criminal proceedings.

Nyamodi argued that the court must first determine whether it has jurisdiction before considering the request to restrain security agencies from taking action against the two men.

The State, through Attorney General Dorcas Oduor, also urged the court to close the proceedings, arguing that it no longer had jurisdiction to continue hearing the application after the two men had been found.

Through State Counsel Ms Were, the Attorney General maintained that the court should allow investigative agencies to handle the matter rather than proceed with taking evidence from the two men.

IPOA also opposed the proposed testimony, asking the court to halt the proceedings to allow it to independently investigate the circumstances surrounding the disappearance.

Through its lawyer, the authority warned that allowing the two men to narrate their ordeal in open court could expose witnesses and undermine ongoing investigations.

"IPOA is of the position that the court should stop the proceedings and allow it to investigate the matter, as proceedings in court where there would be witnesses in cases, we are investigating are likely to have an impact on the advancement of investigations negatively because it may expose witnesses from whom we are yet to obtain witness statements," the IPOA lawyer submitted.

The authority argued that public hearings could compromise the collection of evidence and interfere with its investigations.

However, the Kenya Human Rights Commission (KHRC), through lawyer Mrs Mutimba, opposed attempts to terminate the proceedings, urging the court to allow Abdi and Ayub to narrate their ordeal and expose those responsible for their disappearance.

Mutimba said the fact that the two men had resurfaced alive did not resolve the questions surrounding their disappearance and the circumstances under which they were held.

"We are happy that the victims have been released. It is our position that the habeas corpus proceedings should not be stopped simply because the victim has been found," she submitted.

"Since the circumstances revolving around the said abductions remain unresolved, we are also  concerned with the increase of forced abductions and enforced disappearances of Kenyans."

The commission told the court that it had consistently condemned enforced disappearances through reports, some of which had been submitted to the President and Parliament.

"The commission has continuously condemned this through reports in the press and some submitted to the President and to Parliament. The commission has appeared in several matters before you and the Constitutional Court, and this must stop," Mutimba said.