A lawyer who spent 39 days in custody and more than three years defending himself against terrorism charges linked to the 2019 DusitD2 attack has been awarded Sh6.9 million after the High Court found that the case against him was filed without evidence.
The court ruled that the prosecution failed to meet the constitutional test required before criminal charges can be brought, exposing him to an unnecessary trial and violating his rights.
The judgment awarded advocate Abdinoor Maalim Ismail Sh5 million in general damages for the breach of his constitutional rights and Sh1.9 million in special damages to cover the legal costs he incurred while defending the case.
The court found that the Office of the Director of Public Prosecutions (ODPP) acted contrary to Article 157(11) of the Constitution by starting criminal proceedings without a factual basis. It also held that the prosecution denied Ismail his right to equal protection and equal benefit of the law as guaranteed under Article 27.
While the advocate argued that the prosecution had acted with malice, the court said that claim had not been proved. However, it found that the absence of credible evidence was enough to conclude that the decision to prosecute him was unconstitutional.
“The charges were preferred against the petitioner absent supporting evidence. For this reason, I find that in exercising its discretion, the Office of the Director of Public Prosecutions acted in a manner inconsistent with Article 157(11) of the Constitution and, in this instance, failed in its duty to prevent and avoid the abuse of the legal process,” the court ruled.
Ismail was arrested on the night of January 21, 2019, after heavily armed police officers stormed his home at Shaban Apartments in South C, Nairobi, days after terrorists attacked the DusitD2 complex in Westlands.
He told the court that the officers searched his house without warrants, assaulted him in front of his pregnant wife and child, seized his passport and mobile phone, and arrested him without telling him why.
After the arrest, he was taken to Nairobi Area Traffic Police Station before being transferred to Capitol Hill Police Station. He remained in custody until he appeared before a court at Milimani, where he first learnt that investigators believed his M-Pesa business had been used in transactions connected to the terror attack.
The prosecution later secured orders allowing investigators to continue holding him as inquiries went on. By the time he was formally charged, he had spent 39 days in custody.
Prosecutors accused him of aiding and abetting a terrorist act and financing terrorism. They alleged that Sh19.7 million had been received and transferred through an M-Pesa till operated by Seatech Limited and claimed the money helped facilitate the attack.
Ismail denied the allegations and maintained that investigators had misunderstood how an M-Pesa merchant account operates.
His lawyers wrote to the ODPP challenging the charges and explained that the till number appearing in the charge sheet did not belong to Seatech Limited. They also presented an agreement between Safaricom Kenya PLC and the company showing that the official till assigned to the business was different from the one relied upon by the prosecution.
Although one terrorism charge was eventually withdrawn, the remaining charge stayed in court for more than three years.
During the trial, the prosecution presented 21 witnesses. On March 28, 2022, the trial court acquitted Ismail under Section 210 of the Criminal Procedure Code after finding that there was no prima facie case linking him to the offences.
Before the arrest, Ismail was the sole shareholder and director of Seatech Limited and Top Task Africa Limited. Through Seatech Limited, he operated a registered M-Pesa agency and had completed his studies at the Kenya School of Law while waiting to be admitted to the Roll of Advocates.
The High Court found that the effects of the prosecution stretched beyond the criminal proceedings. It noted that his bank account was frozen and that his admission to the Roll of Advocates was delayed because of the case.
“As a result of that prosecutorial misstep, the petitioner was detained in custody and subjected to a criminal trial that spanned three years. The collateral consequences were no less severe,” the court stated.
The court added that prosecutors have a constitutional duty to ensure criminal charges are only filed after confirming there is enough evidence to support them.
“By proceeding in the absence of such a foundation, the ODPP violated the petitioner’s right to equal protection and equal benefit of the law. The criminal justice system must be deployed only where evidence, not conjecture, justifies the invocation of the State’s coercive power,” the court said.