Court declines to issue orders blocking Ndiang’ui arrest

Ndiang'ui Kinyagia (in glasses), accompanied by his family in Milimani High Court, on August 16, 2025/JAMES GICHIGI

The High Court in Nairobi has declined to grant anticipatory orders to Ndiang’ui Kinyagia, a petitioner who resurfaced after weeks in hiding, even as it directed police to return his property seized during a search operation.

Delivering his ruling on Tuesday, September 16, 2025, Justice Chacha Mwita noted that the habeas corpus petition initially filed to compel the State to produce the petitioner had been overtaken by events.

Ndiang’ui, who had been reported missing, has since presented himself before the authorities, recorded a statement, and is cooperating with investigators. The court therefore marked the case as withdrawn.

The matter had begun with claims that Ndiang’ui had disappeared under unclear circumstances.

Through Senior Counsel Martha Karua, he later explained that he had chosen to go into hiding after his residence was raided by police without notice.

In an affidavit dated August 5, he told the court that the locks to his home were changed during the raid and that he feared abduction, torture, or even death, citing past incidents in which other individuals in similar circumstances had suffered such outcomes.

Karua told the court that Ndiang’ui’s absence had left his family in distress.

She narrated that his mother, alarmed by his sudden disappearance, had approached the Law Society of Kenya (LSK) seeking urgent intervention.

According to Karua, the mother was “mentally broken” by the situation and acted in desperation, as any parent would, prompting the filing of the habeas corpus petition.

The affidavit further explained that Ndiang’ui had deliberately left his phone behind when he went into hiding, aware that mobile devices are often used to track individuals.

He maintained that he did not know about the court petition until he re-established contact with a relative. Karua argued that her client had not misled the LSK, but had acted out of genuine fear for his safety.

During the hearing, counsel for the Directorate of Criminal Investigations (DCI) confirmed that Ndiang’ui had since appeared before the police and provided a statement.

They argued that the habeas corpus petition had therefore served its purpose and should be marked as spent.

However, they strongly opposed the request for anticipatory bail, insisting that granting such an order would amount to shielding an individual from lawful arrest or investigation.

The lawyers representing the respondents maintained that police must be allowed to carry out their constitutional mandate without interference from the courts.

In a rejoinder, Karua asked the court to protect her client from harassment and pressed for the return of property and gadgets seized during the raid.

She argued that police had not obtained court authorisation to keep the items for two months after they were taken. She also hinted that her client might file a separate civil suit for damages arising from the incident.

The Law Society of Kenya formally withdrew from acting for Ndiang’ui once he resurfaced, stating that he was now in a position to appoint his own lawyers for any follow-up claims.

In his ruling, Justice Mwita balanced the submissions of all parties.

 He observed that since the petitioner was alive and cooperating with investigators, the habeas corpus application had lost its basis.

He ordered police to return the seized property once investigations were complete, but declined to grant anticipatory bail.

 He emphasised that while courts have a duty to protect citizens, they cannot prevent investigative agencies from exercising their lawful authority.

The judge nonetheless reminded authorities that all actions must conform to constitutional principles of human rights and accountability.

He warned that any future threats or violations against Ndiang’ui could be addressed in fresh proceedings if they arose.

The ruling effectively closed the petition but left open the possibility of further legal battles, particularly if the petitioner proceeds with a separate suit for damages.