Haji Mohammed Yassin v Hon Attorney General & 2 others

JUDGMENT 1. The Petitioner, Haji Mohammed Yassin, is a 73-year-old male of Somali origin who holds multiple nationalities, including Zimbabwean and Djiboutian, and has longstanding familial ties within Kenya. He is married to Kenyan women and is the father of numerous children and grandchildren residing in Nairobi. In June 2022, while engaged in his ordinary affairs in Nairobi, the Petitioner was arrested on 14th June 2022 by officers of the Anti-Terrorism Police Unit (ATPU). He was taken to an ATPU facility and detained without being informed of any charge or reason for his arrest. The Petitioner avers that during his detention, while suffering from diabetes and hypertension, his health deteriorated significantly, culminating in kidney failure and other complications allegedly occasioned by unsanitary conditions, lack of adequate medical care, and restricted movement. He further alleges that he was denied meaningful access to his wives and children, and that his two other wives and their children were deprived of his support throughout the period of his custody. 2. It is common ground that no criminal charges were ever preferred against the Petitioner. After spending 108 days in ATPU custody, he obtained a High Court order dated 3rd August 2022 directing his release. Notwithstanding the said order, the Petitioner remained in custody until 19th September 2022. In total, he was detained for approximately three and a half months without trial or conviction. The Petitioner asserts that his continued confinement during this period amounted to willful defiance of a lawful court order. 3. According to the Petitioner, his arrest and prolonged detention were predicated on false and unsubstantiated allegations, including claims of involvement in terrorism, and were further actuated by a conspiracy to dispossess him of a valuable parcel of land situate in Syokimau, valued at over Kshs 1 billion. He maintains that ATPU officers interrogated him primarily about his property and citizenship status rather than any alleged criminal conduct. He contends that his detention in a counter-terrorism facility gravely tarnished his reputation and political standing. The Petitioner further avers that he possessed lawful permission to reside in Kenya and that, consequently, no legitimate immigration basis existed for his detention. He accuses the Respondents of acting maliciously and in bad faith, thereby grossly violating his fundamental rights to liberty, dignity, fair trial, and family life. 4. The Respondents admit having detained the Petitioner but maintain that the detention was lawful. They rely on immigration and anti-terrorism laws, contending that the Petitioner is not a Kenyan citizen and was therefore liable to deportation. They argue that under the Kenya Citizenship and Immigration Act (Cap. 170), the Cabinet Secretary is vested with the power to order the removal of non-citizens, and that a person unlawfully present in the country may be held in custody pending deportation. In this regard, they cite Section 48(4) of the Act, which provides that “an immigration officer or a police officer may arrest without warrant” an illegal foreigner pending arrangements for deportation. They nonetheless acknowledge that the same statute stipulates that any person so detained “shall be deemed to be in lawful custody” and must “be taken to court within twenty-four hours,” thereby mirroring the constitutional 24-hour rule. 5. The Respondents further assert that the Petitioner reported regularly to ATPU once a week, as allegedly required, until the issuance of the court order, and that his continued custody thereafter was occasioned solely by procedural delays in effecting his release. They deny the existence of any corporate or individual conspiracy relating to the Petitioner’s land, noting that no evidence has been tendered to demonstrate that any person benefited from his detention. They contend that the Petitioner had access to legal counsel and family members during his detention, and that any inconvenience suffered https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 2

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was temporary and incidental to an ongoing legal process. Crucially, the Respondents maintain that upon finally receiving the release order on 19th September 2022, they promptly released the Petitioner, and that no further period of detention remains unexplained. 6. The Petition herein was filed on 8th May 2023, following the filing of affidavits and written submissions by both parties. The Petitioner seeks declaratory and injunctive relief for alleged violations of his constitutional rights under Articles 25, 28, 29, 47, 49, and 50 of the Constitution, together with general, exemplary, and punitive damages, and costs. The gravamen of the Petition is unlawful arrest and detention, contempt of a court order, abuse of immigration powers, and the attendant infringement of his rights to dignity, fair trial, and family life. Analysis and Determination 7. Upon a careful review of the record and the submissions by the parties, the principal issues arising for determination by this Court are i. Whether the arrest of the Petitioner on 14th June 2022 and his subsequent detention by the Anti-Terrorism Police Unit were lawful and constitutionally compliant. ii. Whether the continued detention of the Petitioner by the Respondents following the High Court’s release order issued on 3rd August 2022 constituted contempt of court. iii. Whether the arrest and detention of the Petitioner infringed his rights under Articles 25, 28, 29, 47, 49 and 50 of the Constitution, and, if so, the extent to which such detention adversely impacted his health, family life, and property interests, and the constitutional import of those consequences. iv. Whether the Petitioner’s arrest and intended deportation were actuated by improper or ulterior motives, including interference with his property rights, and whether the Respondents thereby abused their administrative and statutory powers. v. In the event of a finding of violation of the Petitioner’s constitutional rights, what reliefs and remedies, if any, are warranted. Lawfulness of Arrest and Detention 8. The point of departure in the Court’s analysis is Article 49 of the Constitution, which entrenches the fundamental rights of arrested persons. In particular, Article 49(1)(f)–(h) provides, in material part, as follows “ 49. Rights of arrested persons (1) An arrested person has the right— … (f) to be brought before a court as soon as reasonably possible, but not later than— (i) twenty-four hours after being arrested; … https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 3

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(g) at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and (h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.” 9. The Constitution is unequivocal that no person may be subjected to arbitrary arrest or detention. Article 49 codifies the long-established principle that an arrested person must be promptly informed of the reasons for the arrest and must be presented before a court within twenty-four hours. At that initial appearance, the person must either be charged with a cognisable offence or the continued deprivation of liberty must be lawfully justified for purposes of further investigation, failing which the person is entitled to immediate release. These procedural and substantive safeguards are not matters of mere form and cannot be lightly disregarded. As this Court has previously observed, “it is unlawful for the police to seek to have a person who has been arrested to continue to remain in its custody without a formal charge being laid in court”. Any practice designed to circumvent the constitutional twentyfour-hour rule “would erode all the gains made in the advancement of human rights and fundamental freedoms since [the] Constitution was promulgated” 10. Here, the facts are stark. The Petitioner was arrested on 14 June 2022 and then held by the ATPU for over three months without being produced in court or charged with any crime. He was never told why he was arrested. By the respondents’ own account, no criminal charges were ever preferred against him -he was merely held “pending deportation.” Even if a person is suspected of being in Kenya unlawfully, the law is explicit that any such detainee must be taken to court within 24 hours. In fact, the Kenya Citizenship and Immigration Act (Cap. 170) provides that a foreign national illegally present may be detained only pending arrangements for departure, and in all cases “shall be taken to court within twenty-four hours”. This provision essentially mirrors Article 49. In this case, no court appearance occurred for 108 days, in violation of both the Constitution and the immigration statute. 11. No justification was proffered by the Respondents for the inordinate delay in presenting the Petitioner before a court. They neither identified the existence of a valid arrest warrant nor pointed to any statutory or other legal authority capable of displacing or qualifying the clear constitutional command. The Respondents instead rested their case on the assertion that the Petitioner was being held pending deportation and was therefore in “lawful custody.” That contention is untenable. Neither Article 49 nor any other provision of law sanctions the prolonged detention of an arrested person without judicial oversight merely because removal proceedings are contemplated. On the contrary, by its plain and unambiguous terms, Article 49(1)(f) requires that even a person held pending removal be produced before a court within twenty-four hours. The failure by the Respondents to either prefer charges against the Petitioner or present him before a judicial officer constituted a wholesale violation of these constitutional imperatives. 12. The Petitioner’s arrest and the protracted period of his detention were not sanctioned by law. The record discloses no lawful detention order, nor any statutory exception capable of overriding the constitutional safeguards governing the deprivation of liberty. The principle of legality, which lies at the heart of constitutional governance, requires that any limitation of personal liberty be firmly anchored in statute or the Constitution itself. No such legal foundation has been demonstrated in the present case. I therefore find and hold that the Petitioner’s arrest on 14th June 2022 and his continued detention without charge were unlawful and arbitrary, in violation of Article 49 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 4

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Continued Detention and Contempt of Court 13. On 3rd August 2022, the High Court issued an order directing the release of the Petitioner, a fact that is not in dispute. The Respondents concede both the existence of the order and that it was communicated to the Anti-Terrorism Police Unit on 15th September 2022. By then, the Petitioner had remained in custody for a further period of forty-three days following the issuance of the release order. He was eventually released on 19th September 2022. 14. The deliberate or negligent failure to implement the High Court’s release order constitutes a serious affront to judicial authority. It is well-settled that willful disobedience of a lawful court order amounts to contempt of court. In the present case, the order directing the release of the Petitioner was final and unqualified. The Respondents’ explanation, attributing the delay to late service of the order, does not excuse their non-compliance. Once the judiciary issues a mandate, state agents are bound to give effect to it immediately. The Respondents had ample opportunity to comply in August 2022 but failed to do so, resulting in the Petitioner remaining in custody after a court had expressly directed his release. This continued detention clearly constituted contempt of the High Court. 15. Contempt of court strikes at the very foundation of the rule of law. Courts exist to uphold rights and resolve disputes, and their orders must be obeyed unless validly set aside on appeal, which was not the case here. In Mohammud & 2 others v IG of Police [2023] KEHC, this Court emphasized that highhanded detention and refusal to grant police bond violated the petitioners’ rights. Similarly, in the present case, the Petitioner’s prolonged custody in defiance of a timely court order flagrantly disregarded the authority of the judiciary. I therefore find that the Respondents’ actions in retaining the Petitioner in detention after 3rd August 2022 amounted to contempt of court. Violation of Constitutional Rights (Arts. 25, 28, 29, 47, 49, 50) 16. Having found that the Petitioner’s detention was unlawful, it necessarily follows that several of his fundamental rights guaranteed under the Bill of Rights were infringed. a. Article 25(1) of the Constitution provides that certain rights including freedom from torture or cruel, inhuman or degrading punishment, and the right to a fair trial “shall not be limited” under any circumstances. The Petitioner’s arbitrary detention and the conditions thereof engaged these protections. Denying a person the prompt benefit of habeas corpus or fair judicial process is fundamentally at odds with Article 25’s guarantee of a fair trial and of habeas corpus (Article 25(d)). Likewise, the alleged unsanitary conditions and lack of medical care risk falling afoul of the prohibition on cruel or degrading treatment. Thus the Respondents’ conduct cannot be salvaged under any “emergency” or security justification. b. Article 28 secures the right to human dignity, which specifically includes freedom from torture and cruel treatment. Prolonged detention without charge, coupled with denial of basic needs and medical care, necessarily impairs a person’s dignity. As the Petitioner’s submissions note, the right to dignity is sacrosanct and cannot be compromised even for security reasons. In my view, the detention of an elderly and ailing man for several months without lawful justification, and under conditions that are alleged to have caused serious deterioration of his health, was wholly incompatible with the constitutional guarantee of human dignity enshrined in Article 28. c. Article 29(1) protects every person’s right to liberty and security of the person, and provides that no one may be deprived of liberty “except as may be authorized by the Constitution or other written law”. In the present case, neither the Constitution nor any valid statute authorised https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 5

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the prolonged detention of the Petitioner. On the contrary, Article 49, as discussed below, together with the relevant provisions of the immigration legislation, explicitly prohibit such confinement. The forcible deprivation of the Petitioner’s liberty therefore constituted a clear infringement of his rights under Article 29. Further, Article 29(1)(d) proscribes arbitrary detention, a term which has been consistently interpreted to forbid any deprivation of liberty that lacks a legal basis. On this foundation, it is evident that the Petitioner’s right to personal security was violated. 17. d. Article 47 guarantees the right to administrative action that is lawful, reasonable and procedurally fair. If one views the ATPU’s detention of the Petitioner as an administrative action (removal/detention pending deportation), then Article 47 would oblige the state to follow fair procedures in such process. In the present matter, the Petitioner was afforded neither notice nor an opportunity to be heard in respect of any purported deportation decision. The resort to secretive detention in the absence of formal process indicates a clear breach of the constitutional guarantee of fair administrative action. I note that Article 47(2) explicitly entitles a person to compensation where loss is suffered as a result of administrative action that is unlawful or procedurally unfair. While the Petitioner’s claim is principally framed as a direct constitutional challenge, these principles underscore that the Respondents’ conduct in handling his case fell manifestly short of the requirements of due process. e. Article 49 grants arrested persons specific procedural rights. The Petitioner was neither informed of the grounds for his arrest, nor produced before a court within twenty-four hours, nor formally charged at any initial hearing in fact, no hearing occurred for several months. Each of these omissions constitutes a clear violation of Article 49(1)(a), (f) and (g) of the Constitution. Further, Article 49(1)(h) provides that a detainee is entitled to bail unless there are compelling reasons to deny it. Despite being held for as long as 108 days, the Petitioner was never offered bail on any terms. In sum, the Respondents disregarded all the fundamental safeguards enshrined under Article 49, and this alone renders the detention arbitrary, unlawful, and unconstitutional. f. While the Petitioner was never formally charged with any offence, the protections under Article 50 of the Constitution remain highly instructive. Article 50(2) reiterates the right to bail and the presumption of innocence, among other safeguards. Given that the Petitioner was effectively treated as an accused detained on mere suspicion these provisions underscore that he should have been released on bail in the absence of compelling justification. Article 50 further prohibits the indefinite confinement of a person without trial. The Respondents’ failure to afford any of the safeguards enshrined in Article 50, particularly the prompt charge or release requirement, accentuates the breach of the Petitioner’s due process rights. Taken cumulatively, the Respondents’ actions infringed multiple, overlapping constitutional guarantees. The Petitioner’s rights to personal liberty and security under Article 29, to human dignity under Article 28, and to due process under Articles 25, 47, 49, and 50 were all violated by his unreasonably prolonged detention. It is beyond dispute that these rights are among the most fundamental in our legal order and cannot be curtailed absent the most compelling legal justification. No such justification has been demonstrated in this case. Impact on Health, Family and Property 18. The Petitioner’s detention also had profound adverse effects on his personal circumstances, which are highly relevant in assessing the appropriate remedies. With respect to his health, the evidence contained in the Petitioner’s affidavit indicates that his confinement either caused or aggravated serious https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 6

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medical conditions. Article 43(1)(a) of the Constitution guarantees the right to health, including access to health care services. While Article 43 is a socio-economic right subject to progressive realization, it is well-established that the State has an immediate obligation to ensure urgent medical care where needed. The Petitioner’s allegations that he suffered kidney failure and exacerbation of hypertension due to inadequate medical attention and poor detention conditions demonstrate a serious neglect of his basic health needs. At a minimum, this conduct violated the principle of humaneness embedded in Article 25(c) and infringed the dignity guarantee under Article 28, as discussed above. In addition to physical harm, the Petitioner endured significant psychological trauma arising from the conditions of his detention, further compounding the infringement of his fundamental rights. 19. With regard to family rights, Article 45 recognizes the family as the “natural and fundamental unit of society” and imposes a constitutional duty to protect it. By unlawfully detaining the Petitioner, the Respondents disrupted his contact with and support for his dependents. He was separated from his wives and children, who allegedly endured both economic and emotional hardship during his absence. Although the Constitution does not contain a provision explicitly labeled as the “right to family life,” this Court has consistently considered the impact of state action on family integrity within the broader frameworks of dignity and equality. It is indisputable that the Petitioner’s arbitrary detention placed considerable strain on his family relationships and deprived his relatives of his support. While the resulting harm may not be readily quantifiable, it constitutes a tangible consequence of the rights violations and will be duly weighed in the assessment of appropriate relief. 20. With respect to property rights, Article 40 safeguards individuals against arbitrary deprivation of property. The Petitioner contends that influential persons sought to dispossess him of a valuable tenacre parcel in Syokimau that he owns, and alleges that his detention formed part of a scheme to coerce him into relinquishing that land. While no formal deprivation of title or legal transfer of the property has been demonstrated, any use of state power to secure property for private gain would constitute a flagrant violation of Article 40. In Mohammud & 2 others v IG of Police [2023] KEHC, this Court underscored that the Constitution prohibits governmental expropriation of property without due process and just compensation. In the present case, however, the only alleged property-related “taking” pertains to an attempted deprivation of liberty intended to influence a private outcome. Having carefully considered the evidence, I find no concrete proof linking the Respondents to any illicit transfer or appropriation of the Petitioner’s assets. Accordingly, I do not find that the State, in fact, deprived the Petitioner of property. Ulterior Motives and Deportation Procedure 21. The Petitioner asserts that his arrest and the attempted deportation were not bona fide security measures, but rather constituted part of a private scheme to appropriate his property. He alleges that “powerful individuals” within government orchestrated his detention to compel his removal from Kenya and thereby gain control of his land. The Respondents, however, deny the existence of any such conspiracy, contending that the Petitioner has adduced no evidence implicating any specific person or entity in wrongdoing. The record reveals only the official rationale for the Petitioner’s detention: concern regarding his immigration status. 22. Courts must remain vigilant to prevent the abuse of state power for private ends; nevertheless, such allegations must be supported by cogent evidence. While the Petitioner’s claims are serious, the record before this Court contains no direct corroboration. The investigating affidavit indicates that the ATPU’s inquiry was focused on the Petitioner’s nationality and potential inadmissibility, rather than on his property. There is no evidence of any transfer of title or even active litigation concerning the Syokimau land in the materials before the Court. In these circumstances, the Respondents’ denials https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 7

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stand largely unchallenged by admissible evidence. On the balance of probabilities, I am unable to find that the Respondents acted in bad faith with respect to the Petitioner’s property. The Court requires more than conjecture to attribute such a motive. 23. That said, the absence of a proven property motive does not excuse the Respondents’ conduct. Even setting aside any personal interest, their actions, detaining the Petitioner without lawful authority or due process were already wrongful. The possibility of ulterior motive, though it may reflect the Petitioner’s perception, remains unproved. However, the Respondents failed to observe the proper procedural requirements in dealing with the Petitioner’s status as a foreign national. If a decision to deport him was made, it was executed informally and without any notice. The record contains no evidence that a formal deportation order under the Immigration Act was ever issued or served. Section 47 of the Act clearly entitles a person facing deportation to written notice of the order and its reasons, as well as the opportunity to appeal. None of these mandatory procedural safeguards were observed in the present case. Consequently, the purported “deportation attempt” was procedurally defective and constituted an abuse of administrative power. 24. In conclusion, while the Court does not find sufficient evidence to uphold the Petitioner’s allegations of a property‑grab conspiracy, it underscores that the Respondents’ handling of the case was marred by disregard for legal norms. There is no mitigating evidence to suggest that a genuine security risk justified their highhanded approach. The only narrative consistent with the facts and law is that the Petitioner was detained with no legal basis. As regards motive, while the Petitioner’s claims remain unproven, it must be emphasized that the rule of law is violated regardless of whether the detention was driven by a genuine concern or a contrived purpose. Remedies and Damages 25. The Petitioner is clearly entitled to relief. His detention was unlawful, and his constitutional rights were violated. Accordingly, I allow the Petition and grant the relief set out herein. In doing so, I bear in mind that this is a constitutional rights petition, the primary purpose of which is to vindicate fundamental freedoms and provide appropriate compensation for their breach. In determining the quantum of damages, I take into account relevant precedents and the particular circumstances of this case. 26. In Mohammud & Others v IG of Police & Others [2023] KEHC 22324, the Court considered a case involving police detention, assault, and incommunicado custody. In that matter, general damages of Kshs 250,000 were awarded to each petitioner for breaches of liberty and dignity, while exemplary damages were declined. The Court adopted a global approach to compensate for multiple overlapping breaches occurring concurrently. Similarly, in the present case, the Petitioner suffered concurrent violations of liberty, dignity, and personal security over an extended period. Aggravating factors unique to this case include the Petitioner’s advanced age and serious health conditions, the stigma of being detained in an anti-terrorism facility, and the deliberate defiance of a court order. 27. Having carefully considered these factors, I find that an award of general damages in the sum of Kshs 500,000 is fair and reasonable. This amount compensates the Petitioner for the anguish of unlawful confinement, the loss of liberty, physical and psychological distress, and the reputational harm suffered. It reflects the gravity of the breach of constitutional guarantees. In fixing this figure, I am guided by the reasoning in Mohammud supra, as well as earlier jurisprudence such as Dominic Arony Amolo v Attorney General [2003] eKLR, which endorsed a lump sum approach for related breaches, and by the principle of proportionality. The sum of Kshs 500,000 is double the award in Mohammud supra, taking into account the longer period of detention in this case and the heightened vulnerability of the Petitioner. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 8

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28. On the question of exemplary damages, the Court of Appeal has advised that exemplary damages in constitutional cases are exceptional and primarily serve to vindicate rights and deter future violations. Here, the Respondents’ conduct was wilful and contumacious, suggesting possible deterrent purpose for an award. On the other hand, public policy disfavors imposing punitive financial penalties on the State absent particularly egregious circumstances. In Gitobu Imanyara v Attorney General [2016] KECA 557 (KLR), the Court of Appeal warned that citizens expect the State to respect rights without need for large punitive awards. 29. Balancing these considerations, I find that a modest award of exemplary damages is appropriate. The continued detention of the Petitioner after a court order for his release constituting a deliberate defiance of judicial authority warrants some measure of vindication. Accordingly, I award Kshs 200,000 by way of exemplary damages. This sum, being lower than the general damages award, is intended not as punishment per se, but as a public affirmation of the Petitioner’s rights and a warning to the State against similar misconduct in the future. 30. Finally, the Petitioner is entitled to recover his legal costs. In these proceedings, he has substantially succeeded, and it would be inequitable for him to bear the expense of litigating his own constitutional rights. In Mohammud supra, this Court awarded one half of the petitioners’ costs. Given the nature of the present case and the Respondents’ overall loss, it is appropriate to award full costs in favor of the Petitioner. I therefore direct that the Respondents pay the Petitioner’s costs of this Petition. Conclusion 31. For the foregoing reasons, the Petition succeeds. The Petitioner’s arrest and detention were unlawful and contravened his constitutional rights; the Respondents’ failure to implement the court’s release order was contemptuous. His rights under Articles 25, 28, 29, 49 and 50 were violated, and he suffered significant personal and health harm as a result. Although no ulterior motive has been proved, the State’s actions in this case were plainly unjustified. 32. I accordingly issue orders as follows: a. A declaration be and is hereby issued that the Petitioner’s rights under Articles 25, 28, 29, 47, 49 and 50 of the Constitution were violated by his arrest on 14 June 2022 and his unlawful continued detention thereafter; b. A declaration be and is hereby issued that the Respondents’ continued detention of the Petitioner after 3 August 2022 was unlawful and unconstitutional; c. The Respondents are jointly and severally ordered to pay the Petitioner Kshs 500,000 as general damages and Kshs 200,000 as exemplary damages for the violation of his rights; and the sums shall be paid within 45 days of the date of this judgment and the if unpaid at the lapse of 45 days from the date hereof the sums shall bear interest at court rates from the date of judgment until payment in full; and d. The Respondents shall pay the costs of this petition to the Petitioner It is so ordered. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER, 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 9

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JUDGE In the presence of: Counsel for the Petitioner: Dr. Khaminwa Petitioner – Mr. Haji Mohamed Yusuf Counsel for the 1st and 2nd Respondent: Ms. Were https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19220/eng@2025-12-05 10

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