The High Court sitting in Kajiado has awarded Sh10 million to the family of slain Pakistani Journalist Arshad Sharif who was mistakenly shot dead by Kenyan police officers in October 2022.
While delivering her judgement, Justice Stella Mutuku said the use of lethal force against Sharif by shooting him in the head was unlawful and unconstitutional.
She faulted the Attorney General, the DPP and other investigating agencies for their laxity in concluding the probe and charging police officers behind Arshad's death.
She said the State agencies named in the petition cannot escape responsibility for the death as they each have a role to play based on the reliefs sought by the family.
Through Advocate Dudley Ochiel, Javeria Siddique wanted the court to issue an order compelling the attorney general, director of public prosecutions, inspector general of police, independent policing oversight authority and the national police service commission(respondents) to supply her with copies of all documents or evidence including but not limited to films, photographs, videotapes in their custody relating to the shooting in question.
She argued that they have not obtained any justice through investigations and prosecution of those responsible for the killing.
Arshad allegedly fled his motherland in July 2022 to avoid arrest for criticizing the country's powerful military only to be shot dead in Kajiado, in what the police later described as a case of mistaken identity.
Police admitted to the killing that occurred on October 23 last year.
The police claimed to have been trailing a different vehicle, a Mercedez Benz Sprinter Van KDJ 700F allegedly stolen from Pangani.
But Arshad was in a Toyota Landcruiser (V8) KDG 200m.
In awarding the compensation, the judge said it was imprudent to keep the family of the deceased in the dark without updates on the progress of the probe and its outcome.
"By shooting the deceased in the circumstances described in this case and which shooting has been admitted save for allegation that it was mistaken identity, the respondents violated the rights of the deceased," said the Judge.
She said Arshad was subjected to torture and the AG can't escape responsibility.
"The petitioners have persuaded the court that Arshad's rights were violated," said the Judge.
"The Loss of life cannot be compensated in monetary terms nor is the pain and suffering the family must have gone through. But there's consensus that compensation is appropriate remedy for redress in violation of fundamental rights," she added.
She subsequently issued a mandatory order compelling the respondents to conclude investigating and take appropriate action including disciplinary action and prosecution of the officers who shot and killed Shariff in Kajiado on 23 October if found culpable.
She also issued an order compelling the respondents to supply petitioners with an update on the status of the investigations.
She also issued a declaration that the unlawful shooting leading to Arshad's death by Kenya police officers at Kajiado County violated his right to life, equal benefit and protection of law and right to dignity.
The award for Sh10 million was however suspended for 30 days after the state through advocate Augustine Kipkuto informed the court that they are not in a state to make the payments now.
"Amount being sought are public funds. No provision for it now. Arrangements have to be made," he said.
The judge allowed his application but only suspended the order on compensation.