The Director of the Witness Protection Agency has been ordered to appear before the High Court on Tuesday morning at 9 am following an application by counsel for families of missing men from Mathare.
The order was issued by Milimani High Court judge Alexander Muteti on Monday during proceedings in a habeas corpus application concerning Macmillan Kiarie Mugo, Michael Oloo, and Evans Otieno, who have been missing for nearly two months.
Counsel Abner Mango, appearing for the applicants, told the court that his office had served the Witness Protection Agency on July 21, and had also visited their offices on Monday.
Legal officers at the agency confirmed receipt of the court order but indicated the matter remained pending.
The advocate expressed frustration at the delay, telling the court: “In admitting that they have received the court documents, they then tell us that the same are still on the desk. So we are surprised as to what is pending.”
On July 20, Mango, representing the families of the missing men, made a formal application before the court for witness protection for three key witnesses in the case.
The witnesses he sought to protect had witnessed the arrest of Michael Oloo Osoro from a barbershop.
Mango argued that the three witnesses were crucial to uncovering the truth.
He noted that due to the public nature of the case, the security and well-being of the three witnesses was of paramount importance.
In addition to the witness protection application, Mango also requested the court to order the production of CCTV footage from the DCI and the investigating officer, to be played in court to shed light on how Oloo was taken.
During the proceedings today, the court heard that the families were growing increasingly desperate. Mango stated: “I have just been in contact with the family. They are now counting two months since they were home.”
He emphasised the public interest at stake, adding: “We do not overemphasise the public interest in this matter. Even one more day is one too many days.”
Senior Counsel Paul Nyamodi appeared for the National Police Service.
A separate controversy emerged during the proceedings when counsel appearing for the first, second, third, and fifth respondents raised an objection regarding an affidavit filed in the matter.
The advocate pointed out that while an investigative officer had made a request to Safaricom for data, the number listed as his client's-Macmillan- was registered under a Chinese name.
He therefore sought to have the affidavit struck out, contending that the phone number listed as belonging to Macmillan was incorrect.
The judge declined to rule on the objection immediately, directing counsel to raise the matter substantively during tomorrow's hearing.
The feud underlying the proceedings centres on the state's failure to account for the whereabouts of the three men, who were reported missing in late June.
While the witness protection agency has acknowledged receiving court orders, it has not disclosed what action, if any, it has taken.
Mango urged the court to proceed expeditiously, saying the agency, established under the legal act, can be compelled to appear.
“They can be able to actively participate in these proceedings so that they can explain to the court the verdict that they have taken,” he argued.
He asked the court to compel the director to actively participate in the proceedings and explain what steps had been taken.
The applicants contend that the agency's silence amounts to a dereliction of its statutory duty. Counsel Nyamodi, representing the police, did not make substantive submissions during today's hearing.
The judge ordered the Witness Protection Director to appear in person tomorrow, noting that the decision would also determine the trajectory of the anticipatory bail application.
The court is expected to hear both matters concurrently.
A ruling on the application to strike out the affidavit is also anticipated.
