Independent Policing Oversight Authority v Siddique w/o Arshad Sharif & 6 others (Civil Appeal E802 of 2024) [2025] KECA 1456 (KLR)
The bottom line
#Kenya's Court of Appeal cleared the police oversight body IPOA of blame for a journalist's shooting, but ordered it to update the widow on investigations.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in finding that IPOA and the other state organs violated the constitutional rights of the deceased and the 1st respondent
- 2.Whether the trial court erred in issuing blanket orders against IPOA and the other state organs, and in holding them jointly and severally liable
- 3.Whether the trial court erred in issuing mandatory orders against IPOA and the other state organs
- 4.Whether the 1st respondent was entitled to an award of damages and whether the global sum of Kshs 10,000,000 was excessive or inadequate
- 5.Whether this court should grant additional reliefs to the 1st-3rd respondents as sought in the cross-appeal
Key legal issues
#Whether IPOA could be held vicariously liable for the police shooting of the deceased
No. IPOA neither employs police officers nor has command or control over them; command vests in the IG under article 245 and disciplinary control in the NPSC under article 246(3).
The court examined article 245 of the Constitution and sections 8 and 8A of the National Police Service Act vesting independent command in the IG, and article 246(3) vesting recruitment and discipline in the NPSC. IPOA's role is investigative oversight only. Vicarious liability requires an employer-employee or command-and-control relationship, which IPOA lacks. Relying on Teachers Service Commission v WJ, the court held the shooting could not be blamed directly or vicariously on IPOA.
Whether IPOA failed in its duty to investigate
No. IPOA investigated on its own motion, forwarded the file to the DPP within about three months, and responded to all the DPP's requests for clarification, thereby exercising its statutory mandate.
The court traced the chronology: registration of the complaint on October 24, 2022; forwarding of the duplicate file by January 26, 2023; responses on March 16, 2023 and May 29, 2023. Section 6 and section 29 of the IPOA Act empower IPOA only to investigate and recommend. Having recommended prosecution on May 29, 2023, IPOA had fulfilled its mandate; the ball lay in the DPP's court.
Whether IPOA was liable for failure to give the 1st respondent information on the investigations
Yes, but as a breach of its statutory mandate under the IPOA Act, not of the article 35 constitutional right, which is limited to citizens.
Section 6(j) of the IPOA Act requires publication of findings subject to freedom-of-information laws; section 7(1)(c) empowers IPOA to provide victims relevant information to enable civil proceedings; section 6(a) requires IPOA to make public the DPP's response to its recommendations. The widow of a victim of unlawful police killing was entitled to know whether the officers had been identified and what action was intended. Article 21(3) cannot extend the citizen-only article 35 right to a foreign national.
Whether the shooting amounted to torture and cruel, inhuman and degrading treatment
No. There was no evidence of intentional infliction of severe pain or suffering for purposes such as obtaining information; the shooting was allegedly a case of mistaken identity at a road block.
The trial court had found torture on the basis of the CAT definition, which requires intentional infliction of severe pain or suffering for a purpose such as obtaining information or punishment, by or with the acquiescence of a public official. The court found nothing before the trial court demonstrating that the shooting reached that level, although the fatal shooting remained a reprehensible violation of the right to life.
Whether the award of Kshs 10,000,000 should be disturbed
No. The trial court exercised its discretion on limited material - no income, dependency details or estate claim was pleaded - and the figure was neither inordinately low nor high.
Applying Kemfro Africa v Lubia, an appellate court interferes with quantum only where the judge took into account an irrelevant factor, omitted a relevant one, or where the award is wholly erroneous. The 1st-3rd respondents had not indicated the amount sought, the deceased's income, or that they sued for the estate. The cross-appeal for enhancement to Kshs 250,000,000 was therefore refused.
Legal principles established
#- A statutory body such as IPOA can only be held responsible for conduct within its mandate; liability must be apportioned according to each state organ's distinct constitutional and statutory functions, and joint and several liability cannot be imposed by blanket findings.
- Once IPOA investigates a police killing and recommends prosecution to the DPP, it has fulfilled its mandate; the failure to prosecute lies with the DPP, whose prosecutorial powers under article 157 are exclusive and not subject to direction or control.
- An oversight authority with statutory duties of transparency and of providing victims with relevant information cannot withhold all information from a victim merely because the DPP has not decided whether to prosecute; failure to respond to a victim's inquiries breaches its statutory mandate even where the constitutional right to information under article 35 is limited to citizens.
- A fatal shooting by police, though a violation of the right to life, does not amount to torture under the Convention Against Torture absent evidence of intentional infliction of severe pain or suffering for a proscribed purpose.
- An appellate court will not disturb a discretionary award of damages unless an irrelevant factor was taken into account or a relevant one omitted, or the award is inordinately low or high as to be a wholly erroneous estimate.
Court orders
#- 1.Appeal and cross-appeal partially succeed
- 2.Set aside the finding of the trial court and the resulting orders that IPOA was jointly and severally liable with the other state organs for violation of the 1st-3rd respondents' rights and in damages to the 1st respondent in the sum of Kshs 10,000,000
- 3.Declined to interfere with the amount of damages awarded to the 1st respondent
- 4.Directed IPOA to give an update to the 1st-3rd respondents within 30 days on its investigations, its recommendations to the DPP and the response received from the DPP
- 5.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Petition dated October 19, 2023
- Jurisdiction invoked
- First appeal under rule 29(1)(a) of the Court of Appeal Rules; Article 164 of the Constitution
Relief refused
#Enhancement of damages to Kshs 250,000,000 (cross-appeal)
Trial court had limited material on which to base the award and exercised its discretion properly
Mandatory order compelling respondents to conclude investigations, take disciplinary action and charge the police officers
DPP has exclusive mandate under article 157; IPOA had concluded investigations and made recommendations
Order directing the AG to issue a public apology with acknowledgement of facts
The facts of the fatal shooting are yet to be established as the DPP is yet to act on IPOA's recommendations
Order compelling supply of all documents, files and reports relating to the shooting
Not granted by trial court; court upheld refusal to extend article 35 rights to a non-citizen
Costs
We accordingly direct that each party bears its own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, we find that the appeal and cross appeal partially succeed. We accordingly direct that each party bears its own costs of the appeal.
In light of the above matters, we set aside the finding of the trial court and the resulting orders that IPOA was jointly and severally liable with the other state organs for violation of the 1st -3rd respondents' rights, and in damages to the 1st respondent in the sum of Kshs 10,000,000.
the trial court ought to have considered the respective mandates of the state entities before it, isolated their respective responsibilities, and made appropriate orders, including by apportioning such damages as it found due and payable to the 1st respondent between them.
the failure to prosecute as recommended by IPOA lay on the DPP and cannot be attributed to IPOA or the other respondents before the trial court.
As 'Wanjiku's watchman', IPOA cannot sit on the side-lines, fold its hands, and proclaim that it has carried out its investigations and cannot release information unless the DPP authorises it to.
article 21(3) must be read within the context of the Bill of Rights, and cannot be read to extend the right in article 35, limited to citizens, to a vulnerable foreign citizen.
we make an order that IPOA does, in accordance with its mandate under the IPOA Act, give an update to the 1st -3rd respondents within 30 days hereof on its investigations into the death of the deceased, the recommendations it made to the DPP, and the response received from the DPP.
Issues in the judgment
#Judgment states IPOA forwarded its file to the DPP by January 26, 2023 in the court's analysis, while earlier paragraphs (and the DPP's affidavit) record forwarding by February 21, 2023; paragraph 25 also refers to forwarding 'by January 24, 2023'
The DPP's affidavit chronology is stated as 'IPOA re-submitted the file on May 29, 2033' - an apparent typographical error for 2023
The trial court is described as having been wrongly rendered 'Kemro Africa' in one passage where the court elsewhere cites 'Kemfro Africa Limited t/a Meru Express Services (1976) & another v Lubia & anor (No 2)' as the authoritative statement of the damages principles
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sikalieh (Suing as the Chairman of Karen Langata District Association) v Kamenwa & 2 others (Environment and Land Petition E066 of 2022) [2026] KEELC 1692 (KLR)[2026] KEELC 1692 (KLR)5 Mar 2026
- Okindi v Kenya Maritime Authority (Cause E093 of 2024) [2025] KEELRC 2685 (KLR)[2025] KEELRC 2685 (KLR)2 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Independent Policing Oversight Authority v Siddique w/o Arshad Sharif & 6 others (Civil Appeal E802 of 2024) [2025] KECA 1456 (KLR)", Case Analysis (2025). Appeal from Petition dated October 19, 2023 (High Court); memorandum of appeal dated October 16, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1456/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.