Law Society of Kenya & 3 others v Inspector General of Police & 4 others

3. The Acting Inspector General (1st Respondent) has not availed himself as directed and has instead sent his representative, the Deputy Inspector General of Police to appear on his behalf. 4. On 5th September, 2024, M/s Mwangi for the Inspector General pleaded with the court stating as follows:“ The Inspector General has not said he is not coming, he is requesting for another date because it is our position that the 2nd-4th petitioners are not with the police. The Inspector General is requesting another date to appear because we had thought his officers would explain. The Inspector General is requesting another date to appear in court (after holding brief consultation) the Inspector General will come on Monday 9th September, 2024. The officers of Inspector General are here and have confirmed his availability of Monday considering his work and duties.” 5. In spite of very stiff opposition from petitioners’ side, the court after the Inspector General skipped the attendance at 3.00 p.m. which the time the court had reluctantly extended from 10.00 a.m. on the 5th September, 2024 further extended the matter to Monday 9th September, 2024, hesitantly noting as follows: “ The stream of reasons and excuses by the Inspector General of Police are definitely bound to run out. To proceed at this juncture and hastily make and finding of contempt of court may be seen as premature in a grave matter of contempt of court which is a form of a criminal sanction being an offence against the administration of Justice. Our Constitution requires a high threshold for criminal matters. Reluctantly, the reasons for non-attendance today must thus be considered….. It is thus necessary that I postpone these proceedings to Monday 9th September, 2024. The Inspector General having earlier indicated his availability on this particular day should have no further excuse but to comply and attend court physically at 10.00 a.m. so that this court can put this matter to an end…” 6. In spite of what transpired on 5th September, 2024 as indicated above, we are back to the same spot today. As of 5th September, 2024 it was evident that the court had directed the inspector General to attend the court and it was clear to the respondents that delegation had been declined by the court. 7. We are now back to the stream of excuses that the court had clearly noted for snubbing the summons by the Head of Police who should be explaining to the court whether or not the Kenyans in question are in the hands of police and if not, what is being done to get to the bottom of the whole matter. 8. The court appreciates that the Inspector General of Police can delegate and this is possible in law. It also appreciates the fact the Deputy Inspector General of Police is a High Ranking Position. 9. However, the matter at hand may not practically be dealt with by way of delegation anymore considering that the refusals to obey summons have since mutated to what the court considers to be contemptuous conduct on the part of 1st Respondent which is now personal. 10. What simply the Acting Inspector General has displayed is the attitude that he is either too busy to be bothered by court orders even when they are matters affecting life and safety of persons he is required to protect. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10566/eng@2024-09-09 2

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11. A failure to appear in court pursuant to a duly issued summons amounts to direct contempt of court particularly where an opportunity to appear has been extended and ignored. 12. The willful disobedience undermines not only the authority of the court but the supremacy of the law and administration of justice generally. Such attitude affects the rule of law and makes the citizens vulnerable knowing that the law cannot protect them. It may be that same feeling that the petitioners in this petition now feel considering the conduct of the 1st Respondent so far. 13. The Constitution of this country has given the court the mandate to uphold and enforce it on behalf of Kenyans. 14. The Inspector General of Police is a State Officer established under Article 245 (1) of the Constitution. He is appointed under Article 245(2) and bestowed with a mandate to exercise independent command of National Police Service any other functions prescribed by National Legislation. 15. Article 74 of the Constitution provides that prior to assuming office, State Officers must take oath of office. It provides: “ Before assuming State Office, Acting in State Office, or performing any functions of a State office, a person shall take and subscribe the oath or affirmation of office, in the matter prescribed in the Third Schedule or under an Act of Parliament…” 16. The oaths taken by State officer, such as the 1st Respondent have one common denominator: “ They swear allegiance to the Constitution.” 17. This shows the exalted place the Constitution occupies in assuring the public that state/public officers who yield public power will always be guided by the Constitutional values and principles in exercising it. 18. That they will respect the rule of law, human rights, be accountable and act professionally towards the public. 19. It would require them to abide by the orders of the court as the guardian of the Constitution and Constitutional order. 20. Yet, it is now becoming common place that individuals who take and subscribe to the oath of office and assume public office no longer abide by the Constitution and are treating court orders with outright abandonment. 21. The Bill of Rights that is supposed to safeguard the rights of Kenyans no longer matters to some. 22. It is the responsibility of this court to restore confidence in the people of Kenya by holding these persons accountable, however mighty. It may come at considerable cost but this must be done. The court has a responsibility to punish deliberate actions that undermine the Constitution and its authority. The faith and trust of Kenyans in the rule of law of which they have suffered for a far too long agitating for cannot be taken for granted and be diluted through acts of impunity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10566/eng@2024-09-09 3

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23. The Constitution at Article 247 (7) (a) does, among others, acknowledge that Inspector General can even be removed for violation of the Constitution subject to following the laid down procedure. It provides: The Inspector General may be removed from office: “Where there is serious violation of the Constitution or any other law” 24. A deliberate refusal to abide by the court order/summons undermines the principle of rule of law under Article 10 (b) and the failure to attend court to explain the circumstances surrounding the disappearance of the 3 petitioners undermines the principles of accountability by a Public Officer and institution he heads. 25. Heads of institution must had been relied accountable for ensuring constitutional values and principles are adhered to particularly on matter of human right and the rule of law. 26. The contemptuous conduct of the 1st respondent has held this court at ransom, it is no longer able to ascertain the truth of what might have happened to the three petitioners. 27. It was held by the Court of Appeal in Dr. Fred Mating’i & Another Vs Miguna Miguna & 3 Others (2018) eKLR. “ .. bold impunity, open defiance or cynical disregard for the authority of the court and the integrity of the Judicial System… cannot be countenanced and those hell bent on it will find neither help, not refuge and self-serving appeal to natural justice when that imprudent conduct threatens the very foundation of the rule of law..” 28. It is my finding that the 1st Respondent (Acting Inspector General of Police) is guilty of contempt of court and the court ought to punish him accordingly. 29. Further, the court would like to note that there has been unbecoming conduct by a Senior Police Officer, Former JPU Commandant Lazarus Opicho, now in the VVIP Protection Unit which the court considers as bordering on intimidation. 30. I will thus order that Mr. Lazarus Opicho be and is hereby summoned to explain the conduct that included calling my bodyguard and driver trying to ascertain my whereabouts behind my back. I need to ascertain what were the reasons behind such an inquiry among other concerns. 31. I reserve the sentencing together with the explanation by Lazarus Opicho for Friday, September 13, 2024. 32. Having found the 1st Respondent (Acting Inspector General) guilty of contempt, the court is now free and ready to take the explanation provided by Deputy Inspector General since there is no more impediment to the hearing of the matter, the finding on contempt having been made after an opportunity to purge the contempt was extended but not taken. 33. The court has no reason to decline to hear the Deputy Inspector General who is before the court so that this matter can be put to rest. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF SEPTEMBER, 2024. ………………………… L N MUGAMBI https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10566/eng@2024-09-09 4

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10566/eng@2024-09-09 5

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