Fifteen police officers charged with the abduction of two Indian nationals and their taxi driver, are set to go back to the cells.
This is after the High Court at Kiambu suspended a ruling delivered on November 10, 2023, at Kahawa Law Courts, which had granted the 15 officers bond.
Justice Dora Chepkwony issued the orders following a petition by Senior Assistant Director of Public Prosecutions Michael Sang arguing that the court made a mistake by failing to recognise that torture, enforced disappearance and murder are identified as crimes against humanity by the Rome Statute.
Kenya domesticated the statute by the enactment of the International Crimes Act No 16 of 2008.
Sang also poked holes into the magistrate's decision, arguing that he failed to appreciate the callous nature of the case, the public interest considerations and the value of the case in light of the dark history of the country in as far as enforced disappearances and extra-judicial killings are concerned.
He said this downplayed the seriousness of the offence as a compelling reason to deny bond.
"The Honourable Magistrate erred in law and fact by failing to appreciate the circumstances surrounding the commission of the offences, the egregious matter in which the offences were committed, Public Interest Considerations and Security of the victims, required that the bond be denied," the petition read in part.
The prosecutor also faulted the trial magistrate for relying on a probation report that did not cater for the views of the prosecution, limiting the role of the ODPP in bail/bond proceedings.
He added that this was a breach of the constitutional dictates as to the DPP's powers.
Sang also, among other grounds, stated that the court should have handled each accused person's plea for bonds individually, noting that criminal responsibility attaches individually.
Upon determination of the petition and a supporting affidavit, Lady Justice Chepkwony certified the application as urgent and stayed the bail ruling.
"That an order of stay of the ruling of Hon Kiage - PM in Kahawa Chief Magistrates Court Criminal Case No. E124 of 2023 delivered on November 10, 2023, admitting the respondents bond be and is hereby granted pending hearing and determination of this application," the orders dated November 30, 2023, reads.
She set the mention for January 16, 2024, to confirm compliance and for further directions.
Following the orders, Principal Magistrate Gideon Kiage of the Kahawa Law Courts directed that the High Court orders be supplied to the respondents.
In the orders delivered on December 1, Kiage set the mention for Tuesday, December 5.
He also ordered the 1st, 2nd, 4th, 6th, 7th, 9th, 13th, 14th and 15th accused persons to present themselves before the court on the aforementioned date.
The 15 officers include Chief Inspector Peter Muthee Gachiku, James Kibosek Tanki, Joseph Kamau Mbugua, David Chepchieng Kinsei, Joseph Mwenda Mbaya, John Mwangi Kamau, Hillary Limo Kipchumba, Stephen Luseno Matunda, Simon Muhuga Gikenyo, Paul Njogu Muriithi, Boniface Otieno Mtulla, Elikana Njeru Mugendi, Fredrick Thuku Kamau, National Intelligence Service (NIS) officer John Wanjiku Macharia and senior Kenya Wildlife Service (KWS) officer Michael Kiplangat Bett.
They are drawn from various agencies, including the disbanded Special Service Unit (SSU), the National Intelligence Service (NIS) and the Kenya Wildlife Service (KWS).
They are facing seventeen counts, including abduction with intent to kill, forgery of official documents, conspiracy to commit a felony, and subjecting the two Indians and their driver to cruel, inhumane, and degrading treatment.
They are suspected of having abducted Mohamed Kidwai and Zulfiqar Khan and their driver Nicodemus Mwania Mwange on July 23, 2022.
The 15 are alleged to have committed the offence between 0103hrs and 0107hrs along the Southern Bypass along Mombasa Road near Ole Sereni Hotel.
On November 10, they were released on a cash bail of Sh1 million each.
"I am not persuaded that the preferment of charges has changed the circumstances. The accused persons have been aware of the investigations and they have been aware that they were implicated. I hereby release each of them on a cash bail of Sh1 million or a bond of Sh3 million," Kiage said then while granting the bail.