The Independent Policing Oversight Authority’s (Ipoa) case against two senior police officers has suffered a significant setback due to a failure by Vigilance House to properly notify them of summonses requiring them to record statements over allegations of abuse of office.
The Independent Policing Oversight Authority’s (Ipoa) case against two senior police officers has suffered a significant setback due to a failure by Vigilance House to properly notify them of summonses requiring them to record statements over allegations of abuse of office.
In a ruling delivered on May 21, Garsen High Court Judge Nyagah Njagi found that Ipoa failed to confirm whether the summonses delivered to the Kenya Police Headquarters (Vigilance House) ever reached the officers before deciding to prosecute them.
“The authority’s investigating officer merely assumed the officers had been served because the summons were delivered to police headquarters. There was no evidence to support that Vigilance House actually forwarded the summons to the officers,” said Justice Njagi.
As a result, the court quashed Ipoa’s decision to charge former Lamu County Police Commander Perminus Muchangi Nyaga alias Kioi and Shadrack Juma Londo, a senior officer, with abuse of office.
The case stemmed from a 2019 incident in which the Coast Regional Police Commander reportedly received complaints that Chief Inspector Mumo, then the Officer Commanding Station (OCS) at Kizingitini, had released a drug suspect after allegedly accepting a bribe of Sh50,000.
The police boss commander then instructed Mr Nyaga to order Mr Juma to arrest Mr Mumo, who was subsequently detained at Lamu Police Station.
According to court documents filed by Mr Nyaga, the regional commander later dispatched the Tana River County Commander Fred Ochieng to Lamu to conduct room proceedings against Mr Mumo.
After reviewing the available evidence, Mr Ochieng cleared Mr Mumo of any wrongdoing.
Despite the internal clearance, IPOA conducted its investigation and in April 2024 issued summons requiring Mr Nyaga and Mr Juma to appear in court to face charges of abuse of office under Section 101(1) of the Penal Code.
The officers challenged the move by filing a judicial review application seeking orders to prohibit Ipoa and the Director of Public Prosecutions from proceeding with the charges.
They argued that Ipoa had decided to prosecute without affording them an opportunity to be heard, thus violating the principles of natural justice. They further claimed they were never personally served with the summons, as required by law.
“Ipoa conducted inquiries and resolved to prosecute us without affording us a fair chance to respond to the allegations. We were never given an opportunity to be heard,” the officers told the court.
Ipoa through investigating officer Geoffrey Ogolla countered that the officers were attempting to obstruct a lawful criminal process and that their concerns were more appropriate for presentation during trial.
Mr Ogolla argued that he had served the summonses through Vigilance House and received a stamped acknowledgment which he believed constituted proper notification.
He also stated that he had invited both officers to record statements via a letter addressed to the Deputy Inspector General.
“The two failed to appear as summoned. Their claim that they were not given an opportunity to be heard is false,” Mr Ogolla said.
He maintained that he had gathered sufficient evidence to support the charges and that the ODPP had independently reviewed and endorsed Ipoa’s recommendation to prosecute.
“Juma and Nyaga are asking the court to usurp the role of the trial court. They have not demonstrated infringement of any rights, and the application ought to be dismissed,” he added.
However, Justice Njagi disagreed finding Ipoa’s reliance on indirect service through Vigilance House inadequate.
He noted that Ipoa had not provided any confirmation from Vigilance House proving that the officers had received the summons.
“The principle of natural justice requires that any person affected by a decision be granted an opportunity to respond before such a decision is made. Charging the applicants without hearing them violated this fundamental principle,” the judge said.
He criticised Ipoa for failing to ensure the officers were properly served stating that public bodies must observe fair administrative procedures when exercising authority that affects individuals’ rights.
“Ipoa did not follow up to confirm whether the officers had actually received the summons. Proceeding to charge them without proof of service rendered the prosecution unjust,” he ruled.
Consequently, the court granted the officers’ application, issuing an order of prohibition barring Ipoa and the ODPP from continuing with the prosecution unless the officers are properly served and given a fair opportunity to respond.
Justice Njagi also issued an order of certiorari, quashing Ipoa’s decision to prosecute the officers and nullifying all related documents, including the charge sheet filed at the Lamu Principal Magistrate’s Court and the summons issued in April 2024.
