The High Court has awarded Court of Appeal Judge Justice Sankale Ole Kantai Sh2.5 million in damages after finding that his arrest, overnight detention and the warrantless seizure of his mobile phone in February 2020 violated his constitutional rights.
The court held that the Directorate of Criminal Investigations (DCI) and the Inspector General of Police infringed the judge’s rights to dignity, liberty, privacy, property and fair administrative action during investigations into the murder of Dutch businessman Tob Cohen.
It ruled that the material extracted from his phone was inadmissible and restrained the police and DCI from further harassing or summoning him over the concluded inquiry.
Justice Kantai’s Petition Over His Arrest and Detention
Justice Kantai filed a constitutional petition challenging the manner of his treatment. He was represented by lawyer Peter Wanyama of Manyonge Wanyama & Associates LLP.
According to the petition, detectives arrived at his private residence in February 2020 in a convoy of six police vehicles, arrested him and took him to Muthaiga Police Station, where he spent the night in custody.
Officers seized his mobile phone without a search warrant or court order. The device was retained for about three months while investigators extracted and examined private messages and other personal data.
DCI Summons and Closure of the Inquiry
He was required to report to DCI headquarters on six occasions over an 11-month period but was never charged.
The investigation also examined commercial conveyancing transactions he had handled years earlier while in private practice at Kantai & Company Advocates, which he argued were unrelated to the homicide.
The Director of Public Prosecutions later closed the inquiry against him in August 2021, citing a lack of credible or admissible evidence linking him to the killing.
High Court Findings on Constitutional Rights Violations
In its determination, the High Court found violations of Articles 10, 28, 29, 31, 40 and 47 of the Constitution.
These provisions cover national values and principles of governance, human dignity, freedom and security of the person, privacy, property rights and fair administrative action.
The court stressed that law enforcement agencies must operate within constitutional limits and cannot use arrest and detention as substitutes for proper investigation.
It declared the data obtained from the phone inadmissible under Article 50(4), which governs evidence obtained in violation of fundamental rights and freedoms.
Judicial Independence and Orders Against Further Harassment
The petition also raised concerns that the treatment of a sitting Court of Appeal judge threatened judicial independence and public confidence in the Judiciary.
Alongside the damages award, the court issued orders barring the police and DCI from continuing to summon or harass Justice Kantai in connection with the closed investigation.
Background to the Tob Cohen Murder Investigation
Tob Cohen’s decomposing body was discovered in an underground water tank at his Kitisuru home in September 2019, months after he was reported missing.
His widow, Sarah Wairimu, and others were charged in connection with the murder.
Detectives had linked Justice Kantai to the probe over alleged contacts with Wairimu, including claims that he reviewed statements she recorded with police. He has consistently maintained that the allegations lacked evidential foundation.
Lawful Exercise of Police Arrest and Search Powers
The ruling reinforces the principle that police powers of arrest and search must be exercised lawfully and proportionately, even in high-profile investigations.