Justice Pratricia Nyaundi has ordered the Office of the Director of Public Prosecutions (ODPP) to pay Abdinoor Maalim Ismail an advocate of the High Court  KSh6.9 million after finding that he was prosecuted without any factual basis over the 2019 Dusit D2 terror attack.

In the judgment, the judge ruled that the ODPP violated Article 157(11) of the Constitution by instituting criminal proceedings that were not supported by evidence, thereby abusing the legal process and infringing on the petitioner’s constitutional right to equal protection and equal benefit of the law under Article 27.

The court awarded the advocate KSh5 million in general damages for the violation of his constitutional rights and KSh1.9 million in special damages to reimburse legal expenses incurred while defending himself. The court also ordered the ODPP to pay the costs of the petition.

The petitioner, an advocate and director of Seatech Limited, was arrested in January 2019 in the aftermath of the DusitD2 terror attack and accused of aiding and abetting terrorism as well as financing terrorism through his company’s M-Pesa business.

He was detained for 39 days before being charged and remained on trial for three years before being acquitted in March 2022 under Section 210 of the Criminal Procedure Code after the trial court found there was no evidence linking him to the offences.

While the court found that the petitioner had failed to prove malice on the part of the prosecution, it held that the ODPP had fundamentally failed in its constitutional duty to ensure criminal charges are founded on credible evidence before invoking the coercive power of the State.

The judge observed that the prosecution subjected the petitioner to prolonged detention, a lengthy criminal trial, delayed his admission to the Roll of Advocates and caused other far-reaching personal and professional consequences.