High Court dismisses case against 'kamata kamata' Friday arrests

Justice Lawrence Mugambi at Milimani court. [File, Standard]

The High Court has dismissed a case filed by the Law Society of Kenya seeking to force the police to either produce suspects before court within 24 hours or grant them bail if arrested on a weekend or holidays.

LSK had moved to court following the infamous “kamata kamata” Fridays which were happening during President Uhuru Kenyatta’s tenure.

It argued that the arrests were intentionally meant to settle political scores as one would be hauled out and bundled into police cells until Monday when they would be produced before court.

At the same time, the society accused the Inspector General of Police and Chief Justice of abuse of power for allowing suspects to be held in police cells beyond the 24 hours required by law.

Justice Lawrence Mugambi, however, said the lawyers’ lobby group had not produced evidence that would move him to sanction the police and the judiciary.

“The petitioner cannot expect the court to act on assumptions regarding allegations of abuse of power, claims were made without matching them with the requisite proof,” Justice Mugambi said.

LSK was also aggrieved by the police parading names and photos in the media before and after arrest, arguing the move amounted to public lynching and a violation of fair trial as persons arrested were being condemned in public gallery unheard.

Judge Mugambi, however, said that the argument was also not convincing. He said judges and magistrates are competent enough and cannot be swayed by statements made to the press and posted on social media.

Mugambi took a different stand from that of Justice George Odunga (now a Court of Appeal Judge) who held that the state’s arrests of suspects on Fridays and seeking orders to hold them in order to complete investigations is unconstitutional and illegal.

Justice Odunga, in a case filed by trader Agnes Ngenesi who was facing arrest in a vehicle dispute, observed that arresting citizens on Fridays in a bid to avoid producing them in court within the 24 hours spelt by law, amounted to abuse power.

In his judgment in 2020, the judge said  kamata kamata Fridays were in effect taking the country to old dark days where suspects were held in police custody without justification.

“To effect an arrest of a citizen after hours on a Friday in order to avoid arraigning him in court till after he has spent a number of days in custody without any justification for doing so, in my respectful view, amounts to abuse of power,” Odunga ruled.

 “The practice that is ominously gaining ground in this country otherwise infamously known as kamata kamata Friday whereby suspects are deliberately arrested on Fridays and kept in police custody over the weekend must not be permitted to take root,” the judge ruled.

In the case, Ngenesi complained that a vehicle she had hired from Uganda to ferry her goods was detained at Kitui Police Station in December 2017.  The police claimed the vehicle was carrying an unaccustomed good.

The trader explained that she later learnt that the police had pressed charges against her, and on account she was on free bail.

The court heard that she was never summoned to the police or given bail. According to the woman, she claimed that a Sh50,000 bribe which she refused to part with was at the centre of her misery.

In the LSK case, Justice Mugambi heard that the police had come up with a new habit of arresting persons for non-cognizable offences during Friday afternoons and have them spend the weekend in cells.