The mother and wife of missing youth Brian Odhiambo were left in tears as the court closed their case in which they demanded Odhiambo be produced before court, dead or alive.
Odhiambo has been missing since January 18 with his mother Elizabeth Auma and wife Alvy Okello saying he was taken into custody by the Kenya Wildlife Service (KWS) officers.
On Thursday, the two alongside friends and relatives brought the High Court to a standstill for almost 30 minutes as they protested the decision by Justice Julius Nangea.
In the protest outside Nangea’s court, Auma was overwhelmed with tears and crawled 20 metres, demanding justice for her son.
“Who will protect me? Who will fight for me and my son? They took him. I saw it. I want him back,” wailed Auma.
His wife who could not greet anyone because of disappointment said the court of justice had failed them. “There is no hope now.”
The court was set to rule on the application for production of Odhiambo at 11.30, in the case filed by Auma and Independent Medical Legal Unit (IMLU).
People crowded the courtroom by 9am but were asked to wait until 11.30. However, at around 10.30am, the judge read the ruling with a handful of people in the room but in the absence of Lawyer Mogendi Abuya, the lead counsel in the case.
Nangea ruled that there was insufficient evidence from Auma and IMLU to prove that Odhiambo was in the custody of KWS or the Directorate of Criminal Investigations (DCI).
According to Nangea, corroborated evidence of six witnesses who allegedly saw KWS officers abduct Odhiambo was not enough to counter that of KWS David Oyugi, the Assistant Director Lake Nakuru National Park.
The judge noted that Oyugi, who was not at the alleged scene of crime, admitted that his officers arrested a man they did not know but the suspect later escaped.
“The identity of the suspect had not yet been established and the KWS in charge was non-committal as to whether the suspect is the missing person subject of these proceedings,” ruled Nangea.
The court also took note that the DCI had arrested six KWS officers, linked to Odhiambo’s abduction and had preferred a charge of abduction to murder against them.
“The DCI seemed to be satisfied that the Subject was the one who had been apprehended by the KWS,” said Nangea.
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However, Nangea said Odhiambo’s mother and IMLU had the responsibility to prove that Odhiambo was in the custody of KWS or DCI before the court could issue further orders for his production.
Nangea said that Oyugi and DCI in charge of Nakuru East were extensively cross-examined when they appeared before the court, but they maintained that Odhiambo was not in their custody.
“It baffles the mind how the subject could just disappear into thin air at Lake Nakuru National Park and fail to get home,” said Nangea.
However, they just said that since KWS and DCI had denied having Odhiambo in their custody, then there was no sufficient evidence to the contrary.
“No further orders or directions will be issued in relation to Odhiambo’s production application. Let the investigation and prosecution process that is underway take its course,” the judge ruled.
Nangea’s ruling elicited an outcry, as residents of Flamingo estate including area MP David Gikaria saying they were dissatisfied with the ruling.
Lawyer Abuya said they were not present during the ruling together with lawyer Paul Wanjir, despite the court directing them to appear at 11.30am.
“I do not want to assume or speculate but why was the court in a hurry to deliver the ruling? We are not satisfied with the ruling and we intend to take further actions,” said Abuya.
He said they intend to ask the court to either review the ruling and in case they fail, they will move to the Court of Appeal to seek redress.
Abuya said they will also be pursuing a compensation case and forced disappearance and would like the court to also order an inquest as Odhiambo is yet to be found.
“My clients believe the evidence was overwhelming and it was supported by other eye witnesses. Even if we pursue compensation, they will not be satisfied because Odhiambo is missing,” he said.ion
He said the court should have considered the public interest the case had attracted and ensure the same informed its decision.
He called for calm from relatives and also the police as the investigation proceeds.
Human Rights Lawyer Hussein Khalid said the decision of the court will encourage impunity and give police officers’ leeway of abducting people since no action will be taken against them.
“The ruling shows that all the police need to do is come and say the suspect disappeared or escaped and the court will side with them. Where is justice?” wondered Khalid.
He said the court failed to consider summoning the six officers who arrested the suspect in order for them to shed light on the matter, but instead relied on a hearsay statement from their boss who was not there.
Further, Khalid insisted that the court should have taken into account that the DCI preferred an abduction to kill charge against the KWS officers, proving too well they were convinced Odhiambo was in the custody of KWS.
“The search for Odhiambo will not stop and we will not allow the decision to stand in our way,” he said.
He called on police officers to be responsible and take responsibility noting that irrespective of the identity of the person who was in the custody of KWS, there was neglect in their side and coverup.
Gikaria wondered why the court did not believe a mother who knew her son and who swore an affidavit saying she saw KWS officers abduct him.
He added that even the DCI said statements recorded by six witnesses informed their decision to prefer charge of abduction to murder against the six KWS officers.
Mohammed Asman, a resident wondered why President William Ruto was silent on Brian’s issue but he was quick to speak about the five chiefs who were abducted a few days ago.
