The High Court has awarded Court of Appeal Judge Justice Sankale Ole Kantai KSh2.5 million in damages after declaring his arrest and overnight detention in February 2020 unconstitutional.
The court found that actions by the Directorate of Criminal Investigations (DCI) and the Inspector General of Police violated the judge’s constitutional rights, including his rights to liberty, human 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.
Judge Challenged Arrest and Phone Seizure
According to the account presented in the petition, detectives arrived at Kantai’s 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 held for approximately three months as investigators extracted and analysed its contents, including private messages and other personal data.
Represented by Peter Wanyama of Manyonge Wanyama & Associates LLP, Kantai argued that investigators subjected him to unlawful treatment despite lacking sufficient evidence linking him to the killing.
Investigation Focused on Earlier Legal Transactions
The investigation subsequently examined commercial conveyancing transactions Kantai had handled years earlier while practising law at Kantai & Company Advocates.
According to the petition, those transactions were unrelated to the homicide investigation.
Kantai was reportedly required to report to DCI headquarters on six occasions over an 11-month period but 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.
Court Finds Constitutional Violations
In its determination, the High Court found that the respondents had violated Articles 10, 28, 29, 31, 40 and 47 of the Constitution of Kenya.
The provisions cover 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 investigations.
It also addressed the legality of material obtained from Kantai’s mobile phone, declaring the evidence inadmissible under Article 50(4) of the Constitution, which concerns evidence obtained in violation of fundamental rights and freedoms.
Court Restrains Further Harassment
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, according to the case account.
The petition had 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.
The ruling reinforces the constitutional obligation of investigative agencies to respect individual rights and ensure that arrests, searches and other investigative measures are lawful and proportionate.
It also highlights the importance of establishing an adequate evidential basis for criminal proceedings while protecting the privacy and dignity of individuals under investigation.
