Habeas Corpus in Kenya: How courts can respond when someone disappears

Habeas corpus is a legal remedy used to challenge unlawful detention.

The Latin expression means approximately “you shall have the body”, reflecting the central purpose of the order: requiring a person holding another individual in custody to produce them before a court.

In Kenya, the right is expressly protected under the Constitution.

Article 25(d) identifies the right to an order of habeas corpus as a fundamental right that cannot be limited.

Article 51(2) further provides that a person who is detained or held in custody is entitled to petition for such an order.

The remedy is particularly relevant where a person is allegedly held by security officers or another individual without lawful authority, and their family cannot establish their whereabouts through ordinary channels.

What powers does the High Court have?

The High Court has jurisdiction to issue habeas corpus orders under Article 165 of the Constitution and Section 389 of the Criminal Procedure Code.

Section 389 allows the court to direct that a person within Kenya's jurisdiction be brought before it.

Where someone is found to be illegally or improperly detained in public or private custody, the court can order their release.

The provision also gives the court authority to order the production of prisoners for specified judicial proceedings and, in appropriate circumstances, transfer a prisoner from one custody to another.

The purpose is to establish whether the person's loss of liberty is supported by lawful authority.

Habeas corpus therefore applies beyond allegations involving police detention. It can also address unlawful confinement by private individuals or institutions.

Who can apply?

The application is normally filed by someone acting on behalf of the detained person, particularly where the individual cannot access legal representation or communicate with the outside world.

A relative, friend or another concerned person can approach the High Court with information supporting the application.

For someone whose whereabouts are unknown, the applicant needs grounds to believe that the individual is being held by the person or institution named in the application.

Simply establishing that someone is missing does not automatically establish unlawful detention.

The application must provide a basis for the court to examine the alleged custody.

How the application works

The procedure is governed by the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, 1948, which form part of the Criminal Procedure Code.

An application is initially made ex parte to a High Court judge through a chamber summons supported by an affidavit.

The affidavit should provide the relevant facts, including the identity of the missing or detained person, circumstances surrounding their disappearance, information pointing to the alleged custodian and efforts made to establish their whereabouts.

The judge can dismiss the application at this stage or direct that a summons be issued to the person alleged to be holding the individual.

Where the alleged detention involves a public authority, the application documents must also be served on the Attorney-General as required by the rules.

At the hearing, the person or institution alleged to be holding the detainee is required to explain the legal basis for the detention.

If the court finds that the confinement is unlawful, it can order the person's release.

What if the police deny holding the person?

This is one of the difficulties associated with disappearance cases.

A habeas corpus application is principally directed at securing the production of someone believed to be in another person's custody.

If the respondents no longer have physical custody or there is insufficient evidence connecting them to the detention, the remedy may not provide the relief sought.

The Judiciary's Criminal Procedure Bench Book discusses this limitation, citing Masoud Salim & Another v Director of Public Prosecutions & 3 Others, a High Court matter heard in Mombasa.

The Supreme Court has also examined the scope of habeas corpus in Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC & Another (2023).

The Court explained that the remedy is intended to secure the production and release of a person from unlawful custody.

It does not, by itself, provide compensation for every constitutional violation associated with detention or disappearance.

A separate constitutional petition may therefore be necessary to pursue other remedies.

What other constitutional rights apply?

Article 29 protects every person's freedom and security, including the right not to be deprived of freedom arbitrarily or without just cause.

Where a person is arrested, Article 49 provides additional safeguards.

These include being informed of the reason for arrest, the right to remain silent, the right to communicate with an advocate or another person whose assistance is necessary, and the right to be brought before a court within 24 hours, subject to the constitutional provisions governing weekends and public holidays.

These protections apply regardless of whether an arrest involves an ordinary criminal investigation or a matter attracting public attention.