The High Court has declined an application by former Inspector-General of Police Japhet Koome to lift a judgment which found him personally liable for the violence meted by security officers on striking medics in April 2024.
Justice Roseline Aburili dismissed Mr Koome's argument that he was not aware of the case filed by civil society groups led by Katiba Institute after he allegedly instructed police officers to handle the striking medics "firmly and decisively".
This instruction resulted to the injuring of the Kenya Medical Practitioners and Dentists Union (KMPDU) Secretary-general Dr Davji Atela and other officials during the protests.
Pleading with Justice Aburili to set aside the verdict and reopen the case for fresh hearing by granting him opportunity to file a replying affidavit, Mr Koome argued that he had been condemned unheard.
He explained that he was not personally furnished with the court papers and that he learnt about the case through the media reports on January 8,2024 after delivery of the verdict.
But Justice Aburili said the application lacked merit upon finding that the former police boss was served with the court papers via email and through his former office.
"This court finds that service was properly effected upon the respondent. The email used was identified as an official address upon a reasonable search, and although the respondent argues that the rubber stamps evidencing service is not for the legal department, he does not dispute that the registry in question falls within his office which he has since vacated through resignation," said the judge.
She added that there was no evidence that the process server could have manufactured the acknowledgment rubber stamp at Mr Koome's former offices registry. The objection to service is without merit, said the judge.
The court also observed that the trial judge, Jairus Ngaah, while delivering the judgement stated that former IG had been furnished with the documents before the hearing and determination and that he had not filed any response to the case.
On the argument that Mr Koome should have been handed the documents physically, the judge said: "Effecting service of court documents upon the Inspector-General of Police in Kenya involves certain procedural sensitivities and security considerations, particularly in contexts of public unrest, such as strikes, protests, or riots".
Therefore, she said, to expect that a process server would track down an IG to hand over to him the court documents personally, may not be practicable.
"This is because of the fear or public perception of police hostility which can discourage individuals or process servers from approaching such a high ranking official. There is also Security risk. Process servers might feel unsafe approaching armed officers or
stations for fear of being harassed. There is also physical inaccessibility of such high-ranking officials," explained the judge.
Since Mr Koome has since lodged a notice of appeal against the contested verdict, Justice Aburili said he has other remedies to pursue his case.
In the contested finding dated December 31,2024, Justice Ngaah ruled that Mr Koome was culpable of the omissions and commissions of police officers under his command as the then Inspector-General of Police.
The judge held that Mr Koome issued unconstitutional orders and directives to officers under his command to use unlawful force to disperse peaceable and unarmed strikes, assemblies, protests, and pickets under the Constitution.
The case originated from a contention by Katiba Institute that Mr Koome acted with high impunity and irregularly directed subordinate police officers to disperse peaceable and unarmed protests forcibly and violently.
Through lawyer Emily Kinama, the Litigation Manager at Katiba Institute, the lobby group the former Inspector-General of Police never investigated nor disciplined police officers who forcibly, violently, or lethally dispersed peaceable and unarmed protests.
To him, they said the striking KMPDU members had “become a public nuisance” by “blowing whistles and vuvuzelas during the demonstrations” yet blowing whistles and vuvuzelas was exactly what striking and picketing workers do, not just in Kenya but everywhere else in the world.
The court heard that he failed to investigate or discipline the police officers, including the Officer Commanding Police Division for Capitol Hill, who violently attacked Dr Atela earlier on February 29, 2024 at a peaceable picket at Afya House.
"Where a party has a right to be heard, a court cannot force the party to appear in court and where he forfeits the right to be heard, the court’s judgment cannot be disturbed when the consequences finally dawn on that party," she stated.
It was also alleged that Mr Koome was biased in handling of protesters. He was said to have ignored or even facilitated certain other protests.
For instance, in December 2023 at Milimani Law Courts, he allegedly did not take any action on protests in support of the housing levy verdict.
He also did not disperse the protests through Nairobi town and around the Supreme Court over the same levy. According to the civil society groups, such open and glaring bias by an officer who should be neutral, is discriminatory and violates articles 27 and 47 of the Fair Administrative Action Act, 2015.
Other petitioners were Kenya Human Rights Commission, Kenya Section of the International Commission of Jurists, Transparency International Kenya, The Institute For Social Accountability, Africa Center for Open Governance, Siasa Place, Tribeless Youth and Muslims for Human Rights.
