High Court orders IG and DCI to compensate Mandera businessman for unlawful detention

The Garissa High Court has ordered the Inspector General of Police, Japhet Koome, and the Director of Criminal Investigations (DCI), Mohamed Amin, to pay Sh800,000 to a Mandera businessman who was arbitrarily arrested and wrongfully detained for five days at the El Wak police station in 2021.

Justice John Onyiego also terminated the prosecution of Hassan Nur Abbey who was charged with trumped-up charges at the Mandera Law Courts on January 16, 2023, more than a year after detaining his lorry.

Abbey was arrested by the Kenya Defence Forces (KDF) officers and detained at the KDF's El Wak camp. The KDF had suspected that Abbey had stolen the lorry in Somalia.

The DCI took over and the then Mandera South DCI commander Hassabur Abdi directed that Abbey be held at the El Wak police station, where he was held for five days between May 1 and 5, 2021.

He was eventually released after posting a cash bail of Sh50,000. Before the May 2021 arrest, Abbey had been arrested by police on several occasions and had spent money on police cash bails that were never repaid.

Abbey paid a cash bail of Sh200,000 after he was arrested and locked at the Takaba police station on June 26, 2019, and later a cash bail of Sh5000 after he was arrested again.

These funds were never refunded despite requesting for the same several times.

"The retention of Sh200,000 deposited as cash bail at Takaba police station between June 26th and 27th 2019 which money has never been refunded to the depositor is illegal and irregular and hence should be refunded forthwith," stated Justice Onyiego.

"The Attorney General, IG and DCI shall be held jointly and severally liable and therefore condemned to compensate (Abbey) Sh800,000 being general damages for unlawful arrest and detention."

The OCPD Mandera South reportedly utilised the sand loaded in the motor vehicle the last time Abbey was arrested, to construct his office hence occasioning the businessman's loss of his property.

Police arrested Abbey on January 15, 2023, and he was charged at the Mandera Law Courts vide Criminal Case No. E004 of 2023.

Abbey was charged with three criminal charges - having an unaccustomed good contrary to the East African Community Customs Management Act and obtaining registration by pretences contrary to section 320 of the Penal Code.

He was also charged with giving false information to persons employed in the Public Service contrary to section 129 (a) of the Penal Code.

This prompted Abbey and his business partner, Hawa Ibrahim Shabura, who owns the lorry, to sue the police and the KDF for a refund of the money they had spent on cash bail, compensation for the sand, and damages to the lorry, which they claimed had depreciated due to being stationary for so long.

Abbey was also seeking the high court's intervention to quash the charges at the lower court.

He urged the court to declare his arrest and prosecution in Mandera PM's court criminal case no. E004 of 2023 unlawful and malicious.

They told the high court that police were demanding Sh500, 000 to release the motor vehicle and it has remained in the police custody for more than three years.

"Whereas it is the duty of the police to investigate any complaint brought to them, the arrest of (Abbey) on 16-01-23 and subsequent prosecution is a manifestation of malice and unreasonableness on the part of the police against (him) and the charges preferred against him in Mandera Criminal Case No. E004 of 2023 were simply trumped up," stated the judge.

"Had the DCI conducted their investigations decisively, the same would not warrant the charges and prosecution in Mandera Criminal Case No. E004 of 2023." The arrest and subsequent prosecution of (Abbey) is unlawful and malicious."

Onyiego called for the criminal proceedings file for purposes of termination.