“The Director of Public Prosecution and the Attorney General, who were the 2nd and 3rd Respondents, respectively, are hereby directed to pay the Petitioner (Havi) damages in the sum of Kenya Shillings Five Million (Ksh. 5,000,000/-) for the violation of the Petitioner’s rights and fundamental freedom in respect to the Petitioner’s arrest, intimidation, hindrance, harassment, and improper interference with the Petitioner’s performance of his professional functions as an Advocate of the High Court of Kenya and the President of the Law Society of Kenya in accordance with recognized professional duties, standards, and ethics.”- Nairobi High Court Judge A.C. Mirima
By The Weekly Vision Team
The former President of the Law Society of Kenya and current Chairperson of the Board of Directors of the Retirement Benefits Authority (RBA), Nelson Andayi Havi, has been awarded Ksh. 5 million in compensation by Nairobi High Court Judge A.C. Mirima in a judgment delivered on December 15, 2023.
Mr. Havi was arrested at a time when the LSK was facing tremendous, unprecedented discord from within. In a synopsis, on July 13, 2021, officers from the Directorate of Criminal Investigations stormed into his office and whisked him away while attending a virtual court session.
The ruling reads in part, “The Director of Public Prosecution and the Attorney General, who were the 2nd and 3rd Respondents, respectively, are hereby directed to pay the Petitioner (Havi) damages in the sum of Kenya Shillings Five Million (Ksh. 5,000,000/-) for the violation of the Petitioner’s rights and fundamental freedom in respect to the Petitioner’s arrest, intimidation, hindrance, harassment, and improper interference with the Petitioner’s performance of his professional functions as an Advocate of the High Court of Kenya and the President of the Law Society of Kenya in accordance with recognized professional duties, standards, and ethics.”.
He was taken to the Directorate of Criminal Investigations Headquarters, where he was isolated in Block B, Room 70. He was neither informed of the reasons for his arrest nor given access to his advocate until after 8 hours, when the offices told him that he was being held for assaulting Mercy Kalondu Wambua, the then Chief Executive Officer of LSK, on July 12, 2021.
At about 6 p.m., Havi was taken to Muthaiga Police Station, where he was booked. Through the petition dated July 1, 2021, supported by an affidavit, Havi sought to claim various constitutional infractions visited on him by the DCI and DPP while claiming that the decision to arrest him was arbitrary and deprived him of the entitlement in Article 29(a) of the Constitution, which guarantees the freedom and security of the person guaranteed. The investigation of assault and the intended prosecution were in relation to the termination of the contract of employment of Mercy Kalondu Wambua, his quest for the audit of the LSK funds, and his active role in pursuing public interest litigation.
According to Havi, the DCI and the DPP were attempting to criminalize matters that were otherwise private and contractual since the DCI did not summon him to record any statements and none of the Council members present during the alleged assault had been summoned to record their statements. The judges noted that Havi’s arrest happened when he was the President of the LSK and at a time when there were serious wrangles within the society’s leadership.
According to Havi, the then-CEO and a group of council members opposed an audit of certain bank accounts. Havi and his team were so convinced that, in undertaking the audit, massive misappropriation of funds would have been revealed, a situation that the other side would not acknowledge. There was also a protracted employment dispute between the CEO and LSK, which was characterized by the removal and reinstatement of the CEO.
The judgment further reads, “Drawing from the foregoing, it is apparent that the criminal process was employed to otherwise settle ulterior motives. Such may include those raised by the petitioner. There was no justification at all as to why the petitioner was handled the way he was. The criminal justice system should never be abused, for whatever reason. It should only be used in the interest of the administration of justice. Using the criminal justice system to settle scores is not in the public interest and must be frowned at.”.
The final orders were: A Declaration be and is hereby issued that the investigations undertaken by the 2nd Respondent herein as against the Petitioner in respect to the alleged assault of Mercy Kalondu Wambua violated Articles 10 and 244(c) of the Constitution and Section 6(1) of the National Police Service Act. As such, the investigations are unconstitutional, unlawful, null, and void. They are hereby quashed.
A declaration be and is hereby issued that the arrest and confinement of the petitioner by the 2nd respondent on July 13, 2021, to the time of his release violated the petitioner’s constitutional rights as set out under Articles 27, 28, 29(a), 31, 47, 49(1)(a)(i), and (c) of the Constitution.
