The Kahawa magistrate's court will decide on Wednesday, October 26, whether to hear an application from the police's Internal Affairs Unit to detain four officers in connection with the disappearance of two Indians; Zaid Kidwai and Zulfiqar Khan.
This comes after officers Peter Muthee, Francis Muendo, John Mwangi, and Joseph Kamau told Kahawa chief magistrate Diana Mochache that the unit lacks the authority to charge police officers in court.
The four were assigned to the now-defunct Directorate of Criminal Investigations' Special Service Unit (SSU). According to their lawyers, Dunstan Omari and Shadrack Wambui, the IAU is only mandated to address indiscipline, not crime.
"The claims are criminal in nature and have nothing to do with the administrative action against the four. Therefore, the body known by law is the Director of Public Prosecution who we have given that mandate," Omari said.
According to the lawyer, his clients were profiled along tribal lines and interviewed by IAU officers from one ethnic community. "That's why no cop wants to swear an affidavit against them," Omari said.
Senior prosecution counsel Harrison Kiarie urged the court to dismiss the application. In the application, IAU investigator Michael Kirui said the probe involves officers beyond the DCI.
He said while combing Aberdare Forest, where the bodies were suspected to have been dumped, had not yielded much, there were clothes discovered that would necessitate a DNA test. Kirui is requesting that the court allow the unit to extract DNA from the officers and examine their cell phones.
Kidwai's wife said in her application filed before High Court judge Hedwig Ong'udi that the three were in the hands of the police and that they were being held illegally for unknown reasons.
Senior counsel Ahmednassir Abdullahi, her lawyer, asked the court to order the government to produce Kidwai, Khan, and Mwania, alive or dead.
"My husband and his driver have been under police custody since July 22. I am advised by my advocate, advice I verily believe to be true, that he is being held illegally without any lawful justification," she said.
In her affidavit, she narrated that on July 22 her husband left their hotel room at the Curve Park Apartment and Hotel for Alchemist Bar in Parklands, Nairobi. She says he left at around 10.45pm. Fifteen minutes later, they talked and he said he was leaving Alchemist.
She woke up at 3am and he had not returned. Kidwai's wife tried to reach him but couldn't.
The woman said she went to Parklands Police Station to report her missing husband, his friend, and the driver, but officers refused to record a statement because it had not been 48 hours.
She then went to Alchemist and asked for the CCTV footage from that night to be shown to her. The CCTV footage showed the three leaving the bar at midnight.
"With the help of the hotel management, I visited Akila Police Station where I recorded the incident as Occurrence Book number 4 of July 23," she said, adding that while at the station, she was informed by the detectives from Lang'ata Police Station that the vehicle was found abandoned at the Express Highway.
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She said there were skid marks on the road, implying that they had been intercepted by another vehicle. Kidwai's wife later learned that the three had been apprehended at Westlands.
"My husband and his friend have been visiting Kenya on a regular basis since February 2022. We had even planned to visit Masaai Mara, Amboseli, and Lamu," she said.
The IAU insisted yesterday that the four officers were part of a team that kidnapped the three on the night of July 22 and 23. They were apprehended at the Southern By-Pass interchange at the Ole Sereni Hotel, Kirui said.
"Preliminary investigations indicate that the respondents are serving police officers that were deployed in the disbanded Special Service Unit. It is believed that the respondents worked with serving police officers and persons in other security agencies and if freed they are likely to interfere with ongoing investigations," said Kirui.