The High Court has declared the arrest and overnight detention of Court of Appeal Judge Justice Sankale Ole Kantai in February 2020 unconstitutional, awarding him KSh2.5 million in damages over violations of his fundamental rights.
The court found that the actions of the Directorate of Criminal Investigations (DCI) and the Inspector General of Police, including the seizure and examination of the judge’s mobile phone without a warrant, violated constitutional protections relating to liberty, dignity, privacy and fair administrative action.
Justice Kantai had filed a constitutional petition challenging his arrest, detention and subsequent investigations over alleged links to the murder of Dutch businessman Tob Cohen.
Represented by Peter Wanyama of Manyonge Wanyama & Associates LLP, the judge argued that the police subjected him to unlawful treatment despite lacking sufficient evidence to connect him to the killing.
According to the account presented in the petition, detectives arrived at his private residence in February 2020 in a convoy of six police vehicles before arresting him and taking him to Muthaiga Police Station, where he spent the night in custody.
The officers also seized his mobile phone without a search warrant or court order. The device was reportedly retained for approximately three months as investigators extracted and analysed its contents, including private messages and other personal data.
The investigation subsequently focused on commercial conveyancing transactions that Kantai had handled years earlier while practising law at Kantai & Company Advocates. The transactions, according to the petition, were unrelated to the homicide investigation.
Despite being required to report to DCI headquarters on six occasions over an 11-month period, the judge was never formally charged with a criminal offence in connection with the murder.
The Director of Public Prosecutions later closed the inquiry against him in August 2021, reportedly citing a lack of credible or admissible evidence linking him to the killing.
In its determination, the High Court found that the respondents had violated Articles 10, 28, 29, 31, 40 and 47 of the Constitution, which address national values and principles of governance, human dignity, freedom and security of the person, privacy, property rights and fair administrative action.
The court emphasised that law enforcement agencies must operate within constitutional limits and cannot use arrest and detention as substitutes for proper investigation.
The ruling challenged the practice of arresting individuals before establishing a sufficient evidential basis for criminal proceedings, reinforcing the principle that police powers must be exercised lawfully and proportionately.
The judge had argued that the manner of his arrest, the prolonged retention of his phone and the repeated reporting requirements subjected him to harassment and undermined his dignity and privacy.
The court also addressed the legality of the data obtained from Kantai’s mobile phone, declaring the material inadmissible under Article 50(4) of the Constitution, which governs evidence obtained in violation of fundamental rights and freedoms.
The petition further raised concerns about the implications of the investigation for judicial independence, arguing that the treatment of a sitting Court of Appeal judge threatened public confidence in the Judiciary.
In addition to awarding KSh2.5 million in damages, the court issued orders restraining the police and the DCI from continuing to harass or summon Kantai in connection with the concluded investigation, as described in the case account.
The decision underscores the constitutional obligation of investigative agencies to respect individual rights, protect personal privacy and ensure that criminal investigations are conducted on a lawful evidential basis.
