Zulfiqar Ahmad Khan (left) and inset, with Mr Mohammad Zaid Sami Kidwai (with beards). The two disappeared in Kenya in July 2022.
The High Court has granted each of 15 security officers linked to the kidnapping and killing of two foreign nationals hired by President William Ruto's 2022 campaign and a taxi driver a Sh3 million bond pending trial.
Justice Francis Rayola Olel issued the ruling at the Kiambu High Court, dismissing state objections about potential witness interference in the high-profile murder case involving two Indian nationals and a Kenyan taxi driver.
The accused - drawn from the disbanded Special Service Unit (SSU), Kenya Wildlife Service (KWS), and National Intelligence Service (NIS) - face charges related to the July 2022 deaths of Nicodemus Mwania Mwange (taxi driver) and Indian nationals Mohammed Zaid Samikidwai and Zulfiqar Ahmad Khan.
Mr Zulfiqar Ahmad Khan.
The court dismissed the State’s allegations that if released on bond, the officers would interfere with the murder case or scuttle the trial by intimidation of Prosecution witnesses and investigating officers.
“I do find and hold that even though the charge faced is grave and carries heavy penal consequences, all the accused persons are presumed innocent unless proven otherwise,” said Justice Olel.
“Further, it has also been established that they are all Kenyan citizens with strong family and community ties, which grounds them within the country, coupled with the fact that the court has the discretion to impose stringent terms to ensure that they attend court,” said the judge sitting at the High Court in Kiambu.
The suspects have been living in remand since their arrest on various days between October 21, 2022 and June 5, 2023, over the kidnapping and disappearance of Nicodemus Mwania Mwange (taxi driver) and Indian nationals Mohammed Zaid Samikidwai and Zulfiqra Ahmad Khan.
The victims, described as ICT experts working with President William Ruto's 2022 campaign team, were allegedly abducted and killed near Ole Sereni Hotel along Mombasa Road.
Mr Zulfiqar Ahmad Khan, on July 21, 2022, was in the Maasai Mara, in Narok County and was all smiles as he shared images of a lion inviting friends to join him for breakfast.
Superintendent Michael Kirui stated the officers were part of a multi-agency operation at the time of the incident.
The information provided to the court shows that the alleged murder occurred on the night of July 22 and 23, 2022.
It is alleged that the offence was committed by the 15 suspects alongside others not before the court although they have since denied the charge levelled against them.
According to Superintendent of Police Micheal Kirui, all the accused persons had been deployed in a multi-agency security operation that led to the abduction and subsequent brutal murder of the three victims.
In the court’s ruling, Justice Olel noted that though the Constitution says suspects may be denied bail if there are compelling reasons, the same Constitution does not define what qualifies under the term "compelling reasons".
As regards the alleged threats to the witnesses, the court said no evidence was placed before the judge to show that the accused persons had acted in a manner that threatens the witnesses.
“It is the duty of the State to ensure that all persons enjoy their fundamental rights, and this applies to both the victims and the accused persons. Further, there are in place constitutional and legislative imperatives to protect witnesses who are shown to be under real threat if an accused person is released,” said Justice Olel.
On the Prosecution’s argument that, beyond being flight risks, there were urgent concerns which mitigated against the release of the accused persons on bond due to public safety/interest and national security, the court said the concerns were speculative.
“Even though the accused persons served with the security services, having been charged with the offence of murder, it is safely assumed that they were placed on suspension once charged in court and demobilized,” he stated.
“Secondly, investigations in this matter are complete and a decision to charge has been effected. The question of scuttling investigations, due to their operational capacity, therefore does not arise”.
It was the Prosecution’s argument that the accused persons possessed logical capacity, and reach to scuttle the case based on their background in the national security.
“Granting the accused persons bail would erode public trust and reinforce impunity within the security apparatus. It would also strain diplomatic ties with India (where the deceased hailed from) and undermine public trust in the judicial system by the court appearing to shield powerful offenders from accountability,” said the Prosecution.
Friends till death: Mr Mohammad Zaid Sami Kidwai (with beards) and Zulfiqar Ahmad Khan. The two were abducted and allegedly murdered by members of the disbanded Special Service Unit.
However, the court said the concerns raised by the Prosecution did not amount to compelling reasons to deny the suspects admission to bond or bail.
In lieu of the Sh3 million bond, the court said the accused could be released on deposit of Sh1 million cash bail.
In addition, they were ordered to surrender their passports in court during the pendency of the case or until further orders of the trial court.
If any accused person has not acquired a passport, as part of the bond approval process, they will swear an affidavit affirming the said fact. Pending trial, the accused persons will not leave the jurisdiction of this court (travel out of the country) without the express permission of this court,” ordered the judge.
Another condition is that they will not contact or intimidate, whether directly or by proxy, any of the witnesses in the case, as per the witness statements and other documents that have been supplied by the State to the defence.
The court warned that in the event that any of the conditions are violated, the accused are liable to have their bail cancelled, and they would proceed with the trial while in custody.
The accused persons are Peter Muthee Gachiku, James Kibosek Tanki, Joseph Kamau Mbugua, Simon Muhugu Gikonyo, David Chepching Kipsoi, Stephen Luseno Matunda, John Mwangi Kamau, Paul Njogu Muriithi and Hillary Kipchumba Limo.
Others are Fredrick Thuku Kamau, John Macharia Wanjiku, Joseph Mwenda Mbaya, Bonface Otieno Mtulla, Elikana Njeru Mugendi and Michael Kiplangat Bett.
While asking the court to reject the State’s objection to their application for bond, they said that the fact that they had been charged with the offence of murder did not necessarily mean that they stood condemned. They told the court that they were entitled to be presumed innocent until proven guilty.
