Mohamed & another (In Respect of Mohamed Abdulmalik - Subject) v Commissioner of Police & another (Miscellaneous Criminal Application 732 of 2007) [2007] KEHC 229 (KLR) (Crim) (21 November 2007) (Ruling)

Facts

The subject, Abdulmalik Rajab Mohamed, was allegedly unlawfully detained by Kenyan authorities and subsequently transferred out of jurisdiction without due process.

Issues

1. Whether the application for habeas corpus could be sustained in circumstances where the subject was no longer within the jurisdiction of the Kenyan courts.
2. Whether the respondents, having released the subject from custody, bore any further obligation to account for the subject’s removal from the jurisdiction.
3. Whether the High Court had jurisdiction to entertain additional constitutional claims within a habeas corpus application.
4. Whether the actions of State officials in removing the subject of a habeas corpus application from the jurisdiction of Kenyan courts violated the subject’s constitutional rights.
5. Whether the request to summon specific government officials to provide information related to the habeas corpus application was tenable in law.
6. Whether legislation regulating the executive’s discretion in removing individuals from the jurisdiction was necessary to safeguard constitutional rights.

Reasoning

The court held that since the subject was physically absent from Kenya, a writ of habeas corpus could not be enforced. The court acknowledged constitutional violations but dismissed the application as spent.

Outcome

The application for habeas corpus was declared spent and not to be heard any further.