Officers linked to the disappearance of a Kenyan and two Indians last year will spend Christmas and New Year behind bars.
This is after the High Court in Kiambu suspended the ruling allowing the 15 officers drawn from the Directorate of Criminal Investigations (DCI), Kenya Wildlife Services (KWS) and National Intelligence Services (NIS) to be out on bail.
Kahawa Law Courts magistrate Gideon Kiage had released the officers on Sh3 million bond or Sh1 million cash bail after they denied forceful disappearance charges.
Their lawyers Wandugi Kirathe, Martina Swiga, Clinton Mwale, and Joel Isoe told the court that the case involved civil servants who had complied and assisted with the investigations.
However, Justice Dola Chepkwony suspended the orders until January 16, 2024. This means any officer who had paid bail and was out will be re-arrested or ought to surrender himself for detention.
"An order of stay of the ruling of Hon Kiage delivered on November 10, 2023, admitting them to bond is granted pending determination of this application,” ruled Justice Chepkwony.
In the application, Director of Public Prosecution (DPP) Renson Ingonga argued that the lower court erred by granting bail as there was evidence to show the case against the officers was serious.
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On behalf of Ingonga, senior assistant DPP, Michael Sang alongside principal prosecution counsel Allen Mulama argued that there was also evidence from investigators that the officers would intimidate witnesses who are to testify against them.
"The decision of the trial court is legally and factually erroneous as the same went against the express and uncontroverted evidence as adduced by the investigating officer under oath as regards ongoing interference of witnesses which effectively puts at limbo the prospects of securing justice for the victims of the abduction and their families,” Sang told the court.
The court heard that allowing the officers to be out while the case was being processed would be putting the security of the intended witnesses at grave risk.
Following a year of investigations, the DPP pressed 17 charges on the enforced disappearance of Mohamed Zaid Kidwai, Zulfiqar Khan, and driver Nicodemus Mwania in July last year.
Those charged were Chief Inspector Peter Muthee, Inspector James Kibosek, Corporal Joseph Kamau, Corporal David Chepchieng, Corporal Joseph Mwenda, Corporal John Mwangi, and Corporal Hillary Limo.
Others include Constable Stephen Luseno, Simon Muhuga, Paul Njogu, Elikana Njeru, Boniface Otieno, Fredrick Thuku, John Wanjiku and Michael Kiplangat.
The DPP urged the court to order the 15 to be remanded as the trial proceeds citing witness interference and the weight of the charges.
However, the magistrate said the charge of enforced disappearance was not a reason to detain the officers.
He asserted that all the suspects were aware that they were being investigated over the disappearance of the three for over a year.
According to him, the officers did not flee or try to evade the process before they were charged.
"I am not persuaded that the preferment of charges has changed the circumstances. The accused persons have been aware about the investigations and they have been aware that they were implicated,” said Kiage.
The court also threw out the DPP’s argument that the officers were likely to interfere with the witnesses.
The DPP had argued that the officers had threatened the investigations team and had met in order to scuttle the case.
However, Kiage said that the claims were from third parties adding that they were not backed up with specific instances and evidence to prove the allegation.
“Unfortunately, I find the same is replete with allegations from third parties. The same are broad and general,” he observed.
In the case Muthee, Kibosek, Kamau, Chepcheing, Luseno, Muhuga and Wanjiku were charged with 13 counts, including abduction with intent to murder.
It was alleged the nine officers serving in the defunct Special Services Unit (SSU) of the DCI, intercepted a vehicle that Mwania was driving and bundled the three occupants into another vehicle.
Further, they allegedly held Kidwai, Khan, and Mwania at Old Nairobi Area Police Headquarters SSU offices before the trio disappeared.
The other four counts involved the 15. According to the State, the officers jointly caused the disappearance of the three at the Aberdares National Park in Nyeri County.
They were also accused of subjecting the three to inhumane and degrading treatment. Muthee faced a separate count of forgery.
It was claimed he forged a vehicle work ticket serial number Q261311 for July last year.
The prosecution however told the court that the State had decided to release Francis Mwendo Ndonye unconditionally after investigations vindicated him.
The lawyers argued that the charges were mere allegations.
The High Court will mention the case on January 16, 2024.