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Rex Masai case: State bid to save Adamson Bungei flops
Director of Operations at the National Police Service, Adamson Bungei. Inset: Rex Masai.
What you need to know:
- Government wants issues raised dealt with by the Internal Affairs Unit of the police or Independent Policing Oversight Authority
- The court observed that the alternative dispute resolution mechanisms suggested by the State are ineffective
A petition to hold Nairobi police chiefs accountable for the killing of anti-Finance Bill 2024 demonstrators by security agents will go to a full hearing after State's bid for dismissal of the court case flopped.
The High Court has dismissed an objection by the State and rejected a proposal to have the dispute handled by the Internal Affairs Unit of the National Police Service or the Independent Police Oversight Authority.
The petition was filed by the Law Society of Kenya against Senior Assistant Inspector-General of Police Adamson Bungei and Central Officer Commanding Station Moses Mutayi over their "unlawful conduct" in police's handling of the unarmed protestors in June 2024.
LSK also says the two police bosses are liable for harassment of lawyers during the demonstrations.
Mr Bungei was the Nairobi region police commander at the time. In January 2025, he was reassigned to the position of director of operations at Vigilance House and later promoted to senior assistant inspector-general.
The petition involves the killing of two protesters, Rex Masai and a man identified as Evans, who were allegedly shot dead by police on June 18, 2024 in Nairobi CBD.
It also involves harassing and threatening of lawyers, who stepped in to intervene on behalf of the arrested youths, by police officers.
LSK argues that Mr Bungei and Mr Mutayi "commanded their officers to lob teargas and live ammunition and other lethal weapons on both the protestors and their advocates". The protestors were rallying in opposition to the Finance Bill which would have raised taxes.
Listed respondents
The other respondents in the petition are the inspector-general of police, National Police Service and the attorney-general.
They were sued over alleged "failure to stop the perpetration of the said illegal acts" by police officers dealing with the demonstrators.
In its reaction and opposition to the case, the State described the petition as inappropriate.
It asked the court to strike out the case because the issues raised could have been handled by the Internal Affairs Unit of the police service or the Independent Policing Oversight Authority.
The latter is mandated to hold the police officers accountable to the public in the performance of their functions, the court heard.
Through Principal State Counsel Samwel Kaumba, the respondents said LSK ought to have exhausted the alternative mechanisms for redress provided under the National Police Service Act before moving to court.
"The National Police Service Act provides an administrative and specialized avenue for determining the legality of the conduct of police officers. Furthermore, the Act provides for an internal administrative redress mechanism to any complaint against police officers with the Internal Affairs Unit," said the State Counsel.
But Justice Lawrence Mugambi ruled that the petition involves violation of rights and not disciplinary of the police officers.
He added that the alternative mechanisms provided for under the National Police Service and the Independent Policing Oversight Authority Acts could not adequately deal with issues of violation of the rights and fundamental freedoms.
"This petition is founded on alleged constitutional violations, which jurisdiction is vested in this court, and which go beyond the disciplinary concerns against police officers," said the judge.
The court further observed that the alternative dispute resolution mechanisms suggested by the State are not effective.
This is because "Section 87 of National Police Service Act outlines the procedure of lodging of complaints but there is no clarity in regard to the dispute resolution procedure or whether there exists a channel for appeal or review to the court if one is not satisfied by the action taken against a police officer".
"The Act also does not mention the reliefs that may be available to the aggrieved party should the complaint be upheld. The Section only specifies disciplinary consequences that may be meted on the errant officer and no more," said Justice Mugambi.
In the petition, LSK alleges that young Kenyans exercising their rights under the Constitution to peacefully protest were met with grave resistance from the police that was characterized with chaotic running battles, lobbing of tear gas and unlawful arrests and abductions.
It claims that the arrested protestors were not allowed to communicate with their advocates, thus the police breached Article 49(1)(c) of the Constitution which guarantees arrested persons the right to communicate with advocate.
"The legal provisions referred to by the respondents in the National Police Service Act relate to the discipline of the police officers yet the petition is founded on constitutional violations that cannot be addressed under the said mechanism," LSK said in opposition to the objection raised by the State. The case is set for full hearing.