Court gives unit nod to probe Indians abduction
The Internal Affairs Unit (IAU) - National Police Service has the mandate to investigate any police officer suspected of breaking the law, a Nairobi court ruled yesterday.
Chief Magistrate Diana Mochache made the finding after dismissing an application seeking to stop the IAU from probing four officers of the disbanded Special Service Unit (SSU) accused of abducting and causing the disappearance of two Indians and their Kenyan driver in July.
“It is within the mandate of IAU to investigate such cases but upon conclusion, they should forward the file to the Director of Public Prosecutions through the Inspector General of Police,” Mochache said.
“IAU cannot come to court to bring charges, but they can conduct a probe on matters concerning police officers. The application before court is meant to facilitate the investigations.”
While dismissing the application by the four officers, the magistrate further ruled that she was not convinced beyond any reasonable doubt that indeed IAU did not have powers to proceed with investigations to any police officer.
The court ruled that in as much as the IPOA had not commenced their investigations into the said extra-judicial killing, IAU did not act in usurpation of the law and can go ahead with the probe into the mysterious disappearance of two foreigners namely Mohamed Zaid Sami and Zulfiqar Ahmed Khan together with their taxi driver Nicodemus Mwania Mwange.
AIU through their Assistant Superintendent of Police Michael Kirui filed an application seeking 30 days to detain the four suspects — agents of the recently disbanded SSU; Peter Muthee Gachiku, Francis Muendo Ndonye, John Mwangi Kamau and Joseph Kamau Mwangi pending comprehensive investigations into the matter.
But the four through their defence lawyers opposed the application on grounds that AIU has no mandate to bring a case against police officers before court.
“The IAU lacks the mandate to bring a case against a police officer under Section 87 of the National Police Service Act,” one of the defence lawyers Danstan Omari said.
He held that the power to bring such cases to court lies with the DCI or IPOA and NPSC through the ODPP and that IAU powers are confined within the affairs of disciplinary and welfare of police officers internally.
The magistrate disagreed with the defence paving way for investigations into the matter to proceed. Aggrieved by the court decision, the lawyers said they will move today to the High Court to challenge the same.
“We will move to court to challenge the ruling. The outcome will inform our next move but we are ready to go all the way to the Supreme Court,” Omari said.
At the same time, the Magistrate detained the four officers until Friday when she is set to hear the application by IAU to have the officers detained for a month pending the probe.
The investigating agency is seeking several orders including to have the DNA samples be taken from the four officers for purposes of profiling and comparison with some of the recovered items at the scene of crime. The unit is also seeking to do a forensic audit of their phones which is expected to aid in the ongoing investigations.
Gachiku, Ndonye, Kamau and Mbugua were arrested on October 21, at AIU headquarters Nairobi, and are being held in different police stations in the city.
They are alleged to have abducted the three at Ole Sereni hotel on Mombasa road before dumping them at the Aberdares National Park on the night of July 22 and 23, 2022.