Judge sues police over 'humiliating, dramatic arrest'
By Kamau Muthoni
| August 28th 2021
Days after being cleared of murder investigations by the Director of Public Prosecutions, Court of Appeal judge Sankale ole Kantai has trained his guns on the top police brass over what he termed an ‘unnecessarily dramatised’ arrest which injured his reputation.
Justice ole Kantai has sued the Inspector General of Police (IG) and the Directorate of Criminal Investigations (DCI) over his February 21, 2020 arrest in connection to the controversial death of Dutch businessman Tob Cohen.
For 11 months, the judge reported at DCI, initially on a weekly basis and later, monthly.
In the petition filed at the Constitution and Human Rights Division of the High Court, he says DCI detectives should not have arrested him if they did not have evidence against him, adding his arrest was humiliating and that the cells he spent the night in were in deplorable conditions.
Citing his job as a judge who handles cases where public confidence is paramount, the judge drew parallels to the recent arrest of his fellow judges Justice Aggrey Muchelule and Justice Said Chitembwe saying they have occasioned great anxiety amongst judicial officers, besides threatening the independence of the Judiciary.
“The respondents’ actions have affected my work life and I cannot hear and determine matters where the respondents are parties without fear of intimidation,” the judge says.
According to Justice ole Kantai, the police informed him that they had arrested him over the Cohen matter.
They made him record statements arising from transactions he had undertaken for a firm known as Tobs Limited, while he was practicing at Kantai and Company advocates.
He asserts the transactions had nothing to do with the death of the businessman. His lawyer Peter Wanyama says he should never have been arrested “using the humiliating and dramatic approach the DCI used.”
The judge says on the day of his arrest, DCI officers stormed his home in six vehicles, some with blaring sirens.
After recording statements, his fingerprints were taken before he was booked at Muthaiga Police Station where he spent the night. “I spent the night in sordid conditions,” he says of the police station.
The following morning, his phone was taken. The police said they were going to analyse data on the phone.
He says the officers did not produce any search warrant. It was not until after three months, he avers, that his phone was handed back to him.
For 17 months, he says, he waited for his day in court, until August 10 this year when Acting Deputy Director of Prosecutions Victor Mule wrote a letter, saying there was no evidence to support a criminal case against him.
“Upon perusal and analysis of the evidence gathered, we are satisfied that currently, there is no sufficient evidence to prefer charges against the suspect herein.
“Consequently, we directed that the inquiry file be closed unless additional evidence is obtained to warrant a review of our said decision,” Mule wrote.
Justice Sankale cites malice in his arrest and says several of his constitutional rights were violated in the process. He was deprived of his freedom without a just cause, his privacy was invaded, his dignity violated and reputation dragged through mud, he says.
“I should not have been arrested in the first place if the respondents did not have any evidence connecting me to the murder of Tob Cohen,” he says.
In a move that could upset DCI’s modus operandi if granted, the judge wants a declaration made to the affect that arrests made without prior investigations and evidence being in place violate suspects’ constitutional rights.
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