Arshad Sharif/FB
The Supreme Court has dismissed an appeal filed by the family of slain Pakistani journalist Arshad Sharif, upholding the Court of Appeal's decision on several key issues arising from his fatal shooting by Kenyan police officers in October 2022.
The appeal had been lodged by Sharif's widow, Javeria Siddique, alongside the Kenya Union of Journalists and the Kenya Correspondents Association, who challenged aspects of the appellate court's judgment.
Among the issues challenged were the decision to decline to compel the prosecution of the officers involved, enhance damages awarded to the family and direct the government to issue a public apology.
Sharif was shot dead on October 23, 2022, while travelling in Kajiado county after police officers allegedly mistook the vehicle he was travelling in for one linked to a reported carjacking.
The Supreme Court reaffirmed the findings of the lower courts that the journalist's constitutional right to life had been violated through the unjustified police shooting.
However, it declined to interfere with the Court of Appeal's findings on the remaining issues raised by the appellants.
One of the principal questions before the court was whether judges could compel the Director of Public Prosecutions to institute criminal proceedings against the police officers involved in the fatal shooting.
The court answered in the negative, holding that the constitution expressly insulates the DPP from direction or control in deciding whether to prosecute.
The judges held that while courts may intervene where the DPP acts contrary to Article 157(11) of the constitution by abusing prosecutorial powers, they cannot direct the office to commence criminal proceedings in the ordinary course.
"The answer to the issue before us is therefore that this court cannot compel or direct the third respondent (DPP) to institute criminal proceedings against the police officers responsible for the fatal shooting of the deceased," the bench ruled.
The judges also declined to increase the Sh10 million in general damages awarded by the High Court to Sharif's widow for violation of constitutional rights.
They found no evidence that the trial court had taken into account irrelevant considerations or ignored relevant ones in assessing compensation.
"We note that the appellants have not placed before us, any set of facts indicating that, the trial court was not guided by the foregoing principles in arriving at the impugned award. In the circumstances, we are not persuaded that there is ground to force our interference by way of enhancement," they held.
The Supreme Court further agreed with the Court of Appeal that the Independent Policing Oversight Authority had substantially discharged its statutory investigative mandate by investigating the shooting and forwarding its findings to the Office of the Director of Public Prosecutions.
The court nevertheless said Ipoa had a duty to keep the family informed about the status of the investigations, a finding that had already been addressed by the Court of Appeal through an order requiring the authority to provide an update.
The judges also declined the family's request to compel the Attorney General to issue a public apology, leaving intact the Court of Appeal's position that such an order was inappropriate at the stage of investigations and prosecutorial decision-making.
In the end, the Supreme Court found no basis to disturb the appellate court's judgment.
"Our determination of the issues, leaves no doubt that the appeal before us, is one for dismissal," the five judge bench ruled.
The ruling brings to a close years of litigation arising from the fatal shooting of the investigative journalist while reaffirming that his constitutional right to life had been violated.
Sharif fled Pakistan after complaining of harassment by the authorities.
