Demonstrators carry the body of a protester who was shot dead at Parliament Buildings during the anti-Tax Bill protests in Nairobi on June 25, 2024.
The High Court has dismissed a family’s petition to compel the State to prosecute police officers who allegedly killed their kin in Nairobi Central Business District during the Gen Z demonstrations in June 2024.
The family of Beasley Kogi Kamau, the victim, complained of laxity within the criminal justice system due to the delayed investigations into the circumstances of his death and arrest of the killers.
They wanted the court to issue a mandatory order compelling the State to conclude investigating, take disciplinary action, and charge in court the police officers who allegedly used batons to kill him.
But Justice Bahati Mwamuye rejected the petition and said the family failed to prove that the police bosses sued over the death were responsible for the incident.
In addition, he found that the family failed to establish a violation of Kamau’s Constitutional rights by the State actors.
He said nobody saw who caused the blunt injuries to the head and chest of Kamau, leading to his death.
Former Inspector-General of Police Japhet Koome.
“The petitioners seem to depend on circumstantial evidence that it is the police who caused the death of Kamau by use of a baton to fracture his skull and ribs. However, notably, there is no evidence whatsoever to show that these injuries were caused by the Police during disperse of protesters,” said the judge.
The petition was filed by Kamau's sister Beatrice Muthoni together with the Law Society of Kenya and Independent Medico – Legal Unit.
They sued the Nairobi police regional commander at the time Adamson Bungei, former Inspector-General of police Japhet Koome, Attorney-General, Office of the Inspector-General and National Police Service alleging violation of Kamau’s right to justice.
Former Nairobi police regional commander Adamson Bungei.
They maintained that Kamau was unlawfully killed by the police on June 25, 2024 during the anti-government protests against the finance bill. Ms Muthoni said that the autopsy showed the death as having been caused by blunt force trauma to the chest and head.
Delay in investigations
The petitioners claimed that the delay in investigations and prosecution of the police officers who allegedly killed Kamau amounted to a criminal cover-up.
Ms Muthoni alleged that she learnt from Kamau’s friends, who feared for their lives and had therefore declined to swear affidavits in court or testify, that they were together with him at the protests and that they saw him twice that day.
The said friends allegedly last saw him alive at around 1.00p.m near the I&M bank on Kenyatta Avenue and were later informed that his body was taken to the morgue at 8.00pm by police from Kamukunji Police Station.
However, according to the judge, there was no evidence adduced pointing a finger to the police being involved in the death.
The court found that the petition only alleged that blunt force trauma might have been used by the police who were armed with batons as they were dispersing the crowd.
“I have evaluated all the evidence on record and have found no evidence to prove that respondents are in any way connected to the death of Kamau. The fact that some police officers exercised excessive or lethal force, does not, of itself, necessarily imply that the petitioner can attest to who caused the fatal injuries to Beasley Kogi Kamau and whether the same was caused by a police officer or by members of the public,” said the judge.
The court also found that police conducted investigations into the incident and forwarded the report to the Office of the Director of Public Prosecutions to commence a public inquest on the matter.
“The law is settled that courts should be slow in interfering with DPP’s constitutional discretion to prosecute. The petitioners have therefore not satisfied the threshold that would persuade this court to compel the DPP to prosecute since there is already a recommendation to conduct a public inquest by the respondents on the death of Beasley Kogi Kamau among others,” said Justice Mwamuye.
Effective investigations
Justice Mwamuye ruled that National Police and the ODPP could not be directed by court on how to discharge their respective duties in relation to the death of Kamau.
Justice Bahati Mwamuye during a court proceeding at Milimani Law Court on December 18, 2024.
“The respondents have already conducted independent, prompt and effective investigations and forwarded the report to the ODPP, to commence a public inquest on the matter, as required by law. They cannot therefore be deemed to have violated Kamau’s rights to investigate and prosecute due to violations of the right to life and the freedom from inhuman and degrading treatment,” said the judge.
He stated that the petitioners relied on hearsay evidence from the friends who did not testify nor did they swear an affidavit in support of the allegations, making the same inadmissible before the court.
Another finding was that though the police might have used excessive force in the manner in which they responded to the Anti- Finance Bill protests, the reports by Kenya National Human Rights Commission did not make reference to the instances in respect of which Kamau was involved.
