Republic through DCI v Mackenzie & 17 others (Criminal Miscellaneous Application E077 of 2023) [2023] KEMC 10 (KLR)

The court applied the double test from Sudi Oscar Kipchumba: the State had to show it acted in good faith and that continued detention without charge was inevitable in exceptional circumstances and the least restrictive action balancing the rights of the arrested individuals, public interest and security, the integrity of the administration of justice, and the interests of victims. The State's unrebuted affidavit evidence, the respondents' failure to file replying affidavits or seek cross-examination, and the nationally notorious Shakahola saga satisfied this test. The court found attaching stringent bond terms could not guarantee the integrity of the criminal process or preservation of evidence.

The court noted prior orders had been granted by the Malindi and Shanzu courts, but the previous proceedings were not availed. It accepted that the evolving nature of the matter - rising numbers of exhumed bodies, rescued victims and changed lines of inquiry following post-mortems - constituted a change of circumstances. However, it emphasized that the State still had to demonstrate that the offences under investigation called for limitation of the respondents' liberty in the manner sought, which it then went on to assess.

Relying on section 60 of the Evidence Act and definitions of judicial notice and notoriety, the court reviewed divergent authority. It concluded that courts may take judicial notice of media reports depending on the circumstances, but such reports cannot establish guilt or resolve controversy. Given daily national and international coverage, gazettement of Shakahola as a disturbed area and curfew orders, the court took judicial notice of the general and local notoriety of the Shakahola saga as proof of the grave nature of events and national anxiety, without prejudging the respondents.

The court identified two schools of thought: one holding that detention for a suspect's own safety is impermissible because the State bears the duty to protect citizens, and another recognizing it as a valid ground. Applying the Gacheche guidance on conflicting precedent, the court noted the express statutory basis for the ground and adopted a pragmatic approach, finding that the attack on the 1st respondent's property and the volatile public mood made the respondents' safety a legitimate consideration, which also heightened the temptation to jump bail.

The respondents argued the State, having exhausted the Malindi detention period, ought to have sought an extension there rather than closing the file and filing afresh. The court acknowledged the concern but held that the prosecution's institutional discretion had not been shown to have been exercised mala fide. It found the affidavit disclosed genuine investigative progress and saw no indication of deliberate injustice or abuse of the court process.

The court invoked the Registration of Persons Act obligations and section 32 of the Criminal Procedure Code, holding that releasing persons whose identities and abodes are unknown would be hazardous to investigations. It reasoned that Article 49 protects against self-incrimination but does not shield a suspect from disclosing name and address, and that unrebuted allegations of missing identity documents and destroyed identification under the group's ideology weighed cumulatively in favour of detention.