The High Court in Nairobi is set to hear an urgent habeas corpus application demanding that top state security agencies produce Mwenda Mbijiwe,a man who vanished in 2021 after his family alleges he was abducted by plainclothes officers. The case, which names the Attorney General and police chiefs as respondents, seeks to uncover his fate after more than four years of disappearance.
The family of Mwenda Mbijiwe has taken the Kenyan government to court. Filed under a Miscellaneous Criminal Case, the application represents a desperate legal bid to locate a man who has been missing since June 12, 2021.
The applicants are Mbijiwe himself and Jane Gatwiri M’ithinji, who is acting on his behalf. They are represented by the law firm of Ondieki & Ondieki Advocates, with Advocate Evans Ondieki swearing the supporting affidavits and certifying the matter as one of extreme urgency.
The respondents named in the suit read like a roster of Kenya’s top law enforcement and legal offices: the Attorney General, the Inspector General of Police, the Directorate of Criminal Investigations (DCI), the Office of the Director of Public Prosecutions (ODPP), and the National Police Service. The core allegation is grave and direct that state agents are responsible for Mbijiwe’s enforced disappearance.
The court documents, including a Chamber Summons and a Certificate of Urgency, paint a detailed picture of the events leading to his disappearance. Mbijiwe was allegedly abducted in the Roysambu area of Nairobi County while en route to Meru County.
He was driving a motor vehicle registration number KCN 641K, which belonged to Edward Mwangi Mucharia. Crucially, the filings state he was last seen with individuals believed to be officers from the DCI. These individuals are described to have been in civilian attire and using unmarked vehicles, and are accused of bundling him away to an unknown location.
Adding a layer of context, the application reveals that just two days before his abduction, on June 10, 2021, Mbijiwe had participated in an interview on Muuga FM radio where he discussed security matters.
His family strongly suspects this public commentary is what led to his targeting. Furthermore, the 1st Applicant had officially reported death threats to his life at the Central Police Station under OB number 75/16/06/2021,a report filed just days before he vanished.
The applicants are asking the judge to issue orders compelling the respondents to immediately and unconditionally present Mwenda Mbijiwe before the court, “dead or alive,” to be dealt with according to the law. Alternatively, the court is beseeched to order his immediate release from what is termed “unlawful and illegal custody.”
The application is grounded in a host of constitutional provisions including Articles 25(d), 28, 29, and 51(2), which safeguard the right to freedom and security of the person and protect against torture and detention without trial. It also invokes Section 389 of the Criminal Procedure Code, which provides for directions in the nature of a writ of habeas corpus.
The applicants argue that his continued detention or the concealment of his whereabouts is a blatant violation of the rule of law and constitutionalism. They contend that his fundamental rights to health, freedom of movement, and association have been trampled with impunity for over four years. The Certificate of Urgency pleads that unless the court intervenes swiftly, these violations will persist irreparably.
A successful habeas corpus application would force the state to account for Mbijiwe’s whereabouts, setting a significant precedent for accountability. If the court grants the orders, the state agencies would be legally compelled to produce him in court or face consequences for contempt.
Alternatively, if the state denies holding him, the case could morph into a criminal investigation into his abduction. The matter also highlights the critical role of the judiciary as a guardian of liberty against potential executive overreach.
The application now awaits a hearing date before a High Court judge in chambers,who will first determine its urgent nature and then the monumental questions at its core.
