The High Court has awarded an advocate Sh6.9 million in damages after finding that the Office of the Director of Public Prosecutions (ODPP) violated his constitutional rights by prosecuting him in connection with the 2019 DusitD2 terror attack despite the charges lacking sufficient evidential foundation.
In a judgment delivered on Thursday, Justice Patricia Mande ruled that although the petitioner, advocate Abdinoor Maalim, had failed to prove malice on the part of the ODPP, the prosecution had breached its constitutional duty under Article 157(11) by preferring criminal charges that were unsupported by evidence.
"The judgment reveals that these charges were preferred against the petitioner absent supporting evidence. For this reason, I find that in exercising its discretion, the ODPP acted in a manner inconsistent with Article 157(11) of the Constitution and, in this instance, failed in its duty to prevent and avoid the abuse of the legal process," Justice Mande held.
The judge further found that the prosecution violated the advocate's right to equal protection and equal benefit of the law guaranteed under Article 27 of the Constitution.
"The petitioner has demonstrated something more fundamental—a failure by the ODPP to ensure that a prosecution is grounded in a factual foundation capable of sustaining criminal charges," the judge said.
Court documents show that Abdinoor, an advocate and director of Seatech Limited, was arrested in January 2019 in the aftermath of the DusitD2 terrorist attack.
He was then charged with aiding and abetting terrorism as well as financing terrorism through his company's M-Pesa business.
The lawyer was detained for 39 days before being formally charged and remained on trial for about three years before being acquitted in March 2022 under Section 210 of the Criminal Procedure Code after the trial court found there was no evidence linking him to the offences.
Justice Mande observed that the constitutional design entrusts the body with the responsibility of ensuring that criminal prosecutions are only initiated where there is evidence to justify invoking the coercive power of the State.
"As a result of that prosecutorial mistake, the petitioner was detained in custody and subjected to a criminal trial that spanned three years. The collateral consequences were no less severe. His bank suspended his account, and his admission to the Roll of Advocates was delayed," the judge stated.
However, the court declined to find that the prosecution had acted maliciously, holding that he had not met the legal threshold required to establish malice in the prosecutorial decision.
The judge also rejected claims against the Inspector General of Police over the petitioner's prolonged detention, noting that his continued detention had been sanctioned through lawful court orders.
"I will not, therefore, find the second respondent (DPP) to have violated the petitioner's right to freedom and security of the person under Article 29," Justice Mande ruled.
On damages, the court awarded the advocate Sh1.9 million in special damages to reimburse legal fees proved through receipts.
The court also awarded Sh5 million in general damages, saying constitutional damages serve not only to compensate victims but also to vindicate constitutional rights, deter future violations and reaffirm the values underpinning the Constitution.
In the final orders, Justice Mande declared that the advocate's prosecution contravened the Constitution because the ODPP failed to prevent an abuse of the court process.
As a result, the court found this as a violation of his right to equal protection and equal benefit of the law.
The ODPP was ordered to pay the total Sh6.9 million award together with the costs of the petition.
