By Andrew Kariuki
The High Court has dismissed a habeas corpus application filed by the family of missing security analyst Mwenda Mbijiwe, finding that there was insufficient evidence to prove he was in the custody of state agencies or any identifiable persons at the time of his disappearance in 2021.
In a judgment delivered on Wednesday, the court held that while Mwenda Mbijiwe’s disappearance had been sufficiently documented, the family failed to meet the legal threshold required for the issuance of habeas corpus orders.
Mwenda Mbijiwe is said to have disappeared on June 12, 2021, while travelling from Nairobi to Meru. His family had sought court orders compelling state agencies to produce him before court, dead or alive, and secure his release should he be found in unlawful detention.
The application was opposed by state respondents through affidavits filed in court, with the matter later proceeding through viva voce evidence in which Mwenda’s mother testified on behalf of the family while an investigating officer appeared for the respondents.
In determining the matter, the court examined constitutional and statutory provisions governing habeas corpus applications, including Article 51(2) of the Constitution and Section 389 of the Criminal Procedure Code, which provide remedies for unlawful detention.
The judge observed that for habeas corpus orders to issue, applicants must establish evidence showing that the missing person is either unlawfully detained by state agents or held by identifiable persons capable of being compelled through lawful court intervention.
According to the judgement, while the court accepted evidence that Mwenda Mbijiwe went missing and that formal reports had been lodged at both Central and Lang’ata police stations, disappearance alone was not sufficient grounds for granting habeas corpus.
“It is not enough to prove disappearance for the court to grant habeas corpus,” the judge held, noting that the burden remained on applicants to demonstrate unlawful custody.
The court found that Mwenda’s mother, who testified in support of the petition, was not present at the time of the alleged disappearance and therefore could not directly establish the circumstances surrounding the incident.
The ruling further noted that a key witness, identified as Edwin Mwenda Macharia, from whom Mwenda had allegedly hired a vehicle on the day he vanished, did not appear in court despite summons being issued, depriving proceedings of evidence that may have shed light on the disappearance.
According to the court, there was no material presented to demonstrate that Mwenda was being held by state agents or by any specific and identifiable individuals.
The court additionally noted concerns regarding the pace and effectiveness of investigations into the disappearance, observing that several investigative steps, including requests for phone records, IMEI data, geomapping information, banking records and vehicle ownership details, were initiated years after Mwenda vanished.
The judge questioned the practical value of activating some investigative tools nearly five years after the disappearance, while observing that investigations appeared wanting in substance.
However, the court clarified that the case before it concerned a habeas corpus application and not judicial supervision of investigations.
“From the evidence adduced in court, a prima facie case has not been made to the effect that the first applicant was in illegal custody of the respondents,” the judge ruled.
The court consequently dismissed the application, finding it lacked merit, but declined to issue costs orders, describing the matter as one of public importance.
Mwenda Mbijiwe’s disappearance has remained the subject of public concern since 2021, with family members and supporters repeatedly demanding answers regarding his whereabouts.
