Republic through DCI v Mackenzie & 29 others (Miscellaneous Criminal Application E077 & 101 of 2023 (Consolidated)) [2023] KEMC 291 (KLR)
The bottom line
#A Shanzu court extended the detention of most Shakahola massacre suspects for 60 days but released one suspect and refused forced feeding and psychiatric testing.
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 State has established a case for extension of the detention period for the respondents in Misc. application No. E077 of 2023
- 2.Whether the State has established a case to warrant denial of bond and allow for detention of the respondents in Misc. application No. E101 of 2023 in custody for 60 days or any period pending charge
- 3.Whether the State has established a case to warrant the transfer of all the respondents in both matters from police custody to prison custody pending investigations
- 4.Whether the State has established a case to warrant the respondents to be subjected to psychiatric assessment or examination
- 5.Whether the State has established a case to warrant an order for forcible feeding or treatment of the respondents
- 6.Whether the State has established a case to warrant an order for the respondents, and in particular the 1st respondent Paul Nthenge Mackenzie, to be held in isolation from the rest of the respondents
Key legal issues
#Extension of custodial (pre-charge) detention orders in Misc. E077 of 2023
Extension granted for the 1st to 17th respondents for up to 60 days; refused for the 18th respondent who was released on bond
Applying sections 33(8)-(10) POTA and 36A(8)-(10) CPC, the court had to be satisfied the extension was necessary given the circumstances of the initial order. The offences were grave and complex; DNA profiling, identification parades and tracing missing relatives were incomplete; the 2nd to 17th respondents had not disclosed fixed abodes and were flight risks; victims appeared influenced by the respondents and at risk of interference. However, no evidence showed danger to the respondents' lives, and the 18th respondent was not adversely mentioned, so her continued detention was unwarranted.
Fresh pre-charge detention in Misc. E101 of 2023
The 30-day statutory maximum for first-instance detention had already been spent; respondents detained three more days to allow the State to apply for an extension if needed
The court found exceptional circumstances and compelling reasons cumulatively: unknown identities and abodes of the respondents, pending DNA sampling, victims adversely mentioning the respondents, and need for identification parades. The State satisfied the double test of good faith and least restrictive means. However, sections 36A(7) CPC and 33(7) POTA cap first-instance detention at 30 days, which had already expired, so the court could not grant the 60 days sought and instead gave the State three days to regularise its position.
Transfer to prison custody, isolation and conditions of detention
Respondents remanded to Malindi, Kilifi and Shimo La Tewa GK Prisons at the State's discretion, held separately from convicted persons and isolated from one another as far as practicable, with constitutional safeguards on dignity, access to counsel, family and medical care
Prisons are better equipped than police stations in space, diet and amenities for the long period the respondents are likely to be held. The court could not dictate the mechanics of separation, lacking knowledge of prison layouts. The forcible feeding and psychiatric assessment prayers were overtaken by events since the hunger strike had ended once the respondents were moved to Malindi GK Prison; the medical officer under section 29 of the Prisons Act may act without a court order.
Judicial independence in the face of executive pronouncements
The court condemned the Cabinet Secretary's remarks that the respondents would be re-arrested even if released, and affirmed it is subject only to the Constitution and the law
Articles 1, 159(1), 159(2)(a) and 160(1) vest judicial authority in the courts and shield them from control or direction by any person or authority. The court held that a judicial officer must decide fairly on facts and law regardless of public reaction, dismissed the CS's utterances as irrational outbursts, and assured the parties they would not influence the outcome.
Legal principles established
#- An application for extension of pre-charge detention requires the court to be satisfied, having regard to the circumstances under which the initial detention order was issued, that it is necessary to grant the order
- Detention pending charge is an exceptional measure of last resort and the prosecution must establish compelling reasons on a balance of probabilities
- The right to remain silent under Article 49 does not extend to refusing to give one's name and address, and an arrested person has a legal duty to disclose true identity and place of abode
- The State must satisfy the double test of good faith/inevitability of detention and least restrictive means in balancing the quadruple interests before detaining a person without charge
- Judicial officers must decide independently, free of the control or direction of any person or authority, even in the face of public or executive pressure
- The court is not obliged to allow an application merely because it is unopposed
Court orders
#- 1.The application for extension of custodial orders in Misc. E077 of 2023 allowed to the extent that the 1st to 17th respondents shall be remanded in custody for a further period not exceeding 60 days from 2/6/2023
- 2.The 18th respondent in Misc. E077 of 2023, Rhoda Mumbua Maweu, released on a personal bond of Ksh. 100,000 together with a bond of Ksh. 300,000 with a surety of a similar amount, remaining in custody pending approval of the surety
- 3.The 18th respondent required to visit a police station as directed by the investigators as and when required until completion of investigations
- 4.The respondents in Misc. E101 of 2023 (except the deceased 7th respondent) detained in custody for a further three days to enable the State to apply for extension if required
- 5.The twin applications dated 12/6/2023 allowed only to the extent that the respondents in both matters (save the 7th respondent) shall be remanded at Malindi, Kilifi and Shimo La Tewa GK Prisons at the discretion of the State
- 6.Pursuant to Article 49(1)(e), the respondents to be held separately from convicted persons and in isolation from one another as far as is practicable
- 7.The respondents while in custody to be treated at all times in a humane manner and with respect for their inherent human dignity
- 8.The respondents to be granted reasonable access to their advocate and family during detention, including the right to communicate privately with the advocate
- 9.The respondents to be accorded medical examination, treatment and healthcare whenever such need arises
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 49(1)(f) and (g) of the Constitution; sections 33 and 36A of the Criminal Procedure Code; section 33 of the Prevention of Terrorism Act
- Consolidated with
- Miscellaneous Criminal Application No. E101 of 2023
Relief refused
#Detention of the 18th respondent (Rhoda Mumbua Maweu) in Misc. E077 of 2023
No allegation she was involved in the impugned acts; her only link was being the 1st respondent's wife
Order for forcible feeding of the respondents
The hunger strike had ended and the medical officer does not require a court order under section 29 of the Prisons Act
Order for psychiatric assessment of the respondents
No grounds were given; if premised on the hunger strike, it was overtaken by events
Costs
No costs order made.
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.
The application by the State for extension of custodial orders in Misc. application No. E077 of 2023 is allowed to the extent that the 1st to 17th respondents shall be remanded in custody for a further period not exceeding 60 days from 2/6/2023;
The 18th respondent in Misc. application No. E077 of 2023 Rhoda Mumbua Maweu is hereby released on a personal bond of Ksh. 100,000/= together with a bond of Ksh. 300,000/= with a surety of a similar amount.
The twin applications dated 12/6/2023 are allowed only to the extent that the respondents in both matters (save for the 7th respondent) shall be remanded in Prison custody.
In view of the foregoing, the applications by the State partially succeed.
detention must always be an exceptional measure of last resort. It is also settled that the standard of proof imposed upon the prosecution in establishing compelling reasons for denial of bond or bail is on a balance of probabilities.
In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority
The respondents while in custody shall at all times be treated in a humane manner and with respect for their inherent human dignity;
Issues in the judgment
#The judgment records the 1st to 17th respondents' fixed places of abode as unknown, yet earlier states the State deposed 'the fixed places of abode for the 2nd to 17th respondents remain unknown' - the 1st respondent is inconsistently included/excluded in places of abode findings
The grounds in the E101 of 2023 application refer to 'The true identities and places of abode for the 2nd to 17th respondents are unknown' although that application concerns a different set of 12 respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic through DCI v Mackenzie & 29 others (Miscellaneous Criminal Application E077 & 101 of 2023 (Consolidated)) [2023] KEMC 291 (KLR)", Case Analysis (2023). Miscellaneous Criminal Application No. E077 of 2023 (lead file), consolidated with Miscellaneous Criminal Application No. E101 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/291/eng@2023-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.