Court reserves judgement in case on withdrawal of Judge’s security

The High Court has reserved judgment in a petition filed by Katiba Institute challenging the withdrawal of security officers attached to High Court Judge Lawrence Mugambi following his contempt ruling against former Inspector General of Police Gilbert Masengeli.

Justice Roselyne Aburili heard final submissions from all parties on Wednesday and directed that the matter be mentioned on June 23, for the fixing of a judgment date.

The petition arises from events surrounding a habeas corpus case filed by the Law Society of Kenya concerning the alleged abduction of four Kenyans after the 2024 Finance Act protests.

Judge Mugambi had summoned Masengeli to appear in court over the matter.

After the former police boss repeatedly failed to attend court sessions, the judge convicted him of contempt on September 9, 2024, before sentencing him to six months’ imprisonment on September 13, 2024.

In his ruling, Judge Mugambi also disclosed that the head of the Judiciary Police Unit, Lazarus Opicho, had allegedly contacted the judge’s bodyguards to inquire about his whereabouts, conduct the judge described as intimidation.

Days later, the Judicial Service Commission announced through a public statement that the judge’s security detail had been withdrawn and disarmed.

Katiba Institute subsequently moved to court challenging the action.

Appearing for the petitioner, lawyer Joshua Malidzo Nyawa argued that security assigned to judges constitutes a constitutional benefit protected under Article 160(4) of the Constitution, which bars the variation of judicial benefits to a judge’s disadvantage.

Nyawa submitted that the withdrawal of Judge Mugambi’s security detail immediately after the contempt ruling against Masengeli pointed to retaliation and interference with judicial independence.

He further argued that the respondents violated constitutional provisions on national values, fair administrative action, equality, and non-discrimination.

“The Attorney General has not provided proof that the reason for withdrawal was communicated to the judge, the Chief Justice, or the Judicial Service Commission,” Nyawa told the court, maintaining that the explanation offered later by the police was an afterthought.

The respondents, however, denied any constitutional violations.

Counsel Were, appearing for the Inspector General, the Attorney General, and the Head of the Judiciary Police Unit, relied on a replying affidavit sworn by Assistant Inspector General of Police Ibrahim Omar, the head of the Judiciary Police Unit.

According to the affidavit, the officers assigned to Judge Mugambi had merely been recalled for a mandatory refresher course under the 2016 Policy on the Provision of Protective Security to VIPs and other State officers.

The respondents further stated that two replacement officers Sergeant Reagan Okello and APC Francis Mulei had been assigned to the judge on September 14, 2024, but that the judge declined to accept the new security detail.

The State urged the court to dismiss the petition, arguing that no constitutional violation had been demonstrated.

Lawyer Marshall Lumumba, appearing for the National Police Service Commission, argued that the commission had no mandate over the deployment or withdrawal of police security details, saying such functions fall exclusively under the authority of the Inspector General.

Lumumba submitted that the petition failed to disclose any specific wrongdoing against the commission.

In response, Nyawa maintained that the commission had been properly sued for allegedly failing to uphold constitutional values and ensure professionalism within the police service.

“Thats a level of impunity that the constitution can not countenance,” said Nyawa.

Katiba Institute is seeking declarations that the withdrawal of the judge’s security detail violated the Constitution, as well as orders barring the withdrawal or disarming of judges’ security personnel without prior consultation with the Judicial Service Commission.