Court of Appeal judge Sankale ole Kantai has sued the police for arresting and linking him to the murder of Dutch businessman Tob Cohen without any evidence, a move the judge argues ruined his reputation while violating his rights to dignity and fair treatment.
In a petition filed at the Milimani High Court, Justice Kantai says the Inspector General of Police and the Directorate of Criminal Investigations should have summoned him to record statements, rather than use pomp and drama to arrest him for the murder without any evidence.
The judge says that detectives unlawfully confiscated his phone for three months, and summoned him to the DCI headquarters at least 12 times, yet there was no evidence linking him to any wrongdoing.
Justice Kantai is relying on other successful court petitions where judges found that it is unlawful for police to use arrest as a starting point for investigations.
Aside from psychological torture, Justice Kantai argues that the experience with DCI officers has affected his professional life because he has been unable to hear and determine cases involving the police without fear of intimidation.
Justice Kantai says his arrest without provision of reasons and detention at Muthaiga police station on February 21, 2020, was a violation of his right to human dignity.
The judge wants police stopped from arresting suspects before conducting investigations, and for the courts to rule that several of his rights to liberty, fair administrative action and human dignity as described in the Constitution were violated.
Links to Cohen’s murder
He has asked the court to issue orders barring the DCI and Inspector General of Police from further using arrests to harass and threaten him.
While he has not specified the amount of money sought, Justice Kantai wants the court to also order the DCI and Inspector General of Police to pay him for the damage caused by the arrest and links to Cohen’s murder.
Justice Kantai also wants the courts to issue orders barring the police from using information that was extracted from his phone against him in any way.
He adds that the arrest of judges in dramatic fashion has caused unnecessary panic among judicial officers.
“The arrest as conducted by the respondents was arbitrary and unreasonable. The respondents arrested me without an iota of evidence and began investigations later, contrary to what the law provides.”
“The unnecessary dramatised arrest of the petitioner (Justice Kantai) and the recent arrest of judges have caused great anxiety amongst the judicial officers. The ambush and intimidation that goes on during these arrests is a big threat to the independence of the Judiciary. The actions of the respondents ultimately undermine the public confidence in the judicial process,” Justice Kantai said.
Judge’s dramatic arrest
Police officers drove into Justice Kantai’s home on February 21, 2020, in six cars with blaring sirens, before arresting the judge and speeding off towards the DCI headquarters on Kiambu road.
At the DCI, Justice Kantai was told that he was a key suspect in the murder of Cohen, and that he would be charged in court with the capital offence.
The judge says detectives took his phone without a court order as required by law, and went on to analyse data in the device. Several messages were printed from the phone on the same day.
The following day, Justice Kantai recorded another statement, which focused on work he had done for Mr Cohen’s company, Tobs Ltd, when he was still a lawyer.
After the statements were recorded, the judge was released but ordered to report to the DCI headquarters after three days.
On February 25, 2020 Justice Kantai went to the DCI offices. He was, later in the day, released on police bond and ordered to report to the same offices every week.
Since then, Justice Kantai has been summoned to the DCI offices at least 12 times.
Insufficient evidence
In December 2020, Justice Kantai recorded another statement and was then told to await further communication from Director of Public Prosecutions Noordin Haji on whether or not he will be charged.
“From all the statements recorded, it is crystal clear that I had nothing to do with the murder and the DCI should never have arrested me using the humiliating and dramatic approach they used. Given my high standing in society, the respondents should have simply asked me to visit their offices and record a statement.”
“The respondents have kept me in abeyance for almost 17 months without communicating officially the outcome of the investigations. As such, I have been living in fear of yet another humiliating targeted arrest by the respondents. I am anxious that I could be re-arrested any time by the respondents. As such, my family and I have experienced untold psychological suffering that amounts to the violation to the right to human dignity,” Justice Kantai said.
On August 10, 2021, Mr Haji wrote to Justice Kantai to state that there was no evidence to indicate that the judge was in any way involved in the murder of Cohen.
In the letter now filed in court as evidence, the DPP said he perused the entire investigation file and evidence gathered by detectives, and that there is insufficient evidence to support a charge against the judge.
“Upon perusal and analysis of the evidence gathered, we were satisfied that, currently, there was no sufficient evidence to prefer charges against the suspect herein,” the letter from the DPP’s office reads in part. BY DAILY NATION
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