The High Court has heard that a Kenyan citizen transferred to US custody was held at Guantanamo Bay without ever facing a charge.
American attorney Frank Panopoulos, in his testimony before Justice David Mburu at the Milimani High Court, said Mohammed Abdulmalik was detained from 2007 until his 2024 release.
"He was never charged with anything. He was held indefinitely without charge, what is known as a forever prisoner in the common parlance," Panopoulos said, adopting an affidavit dated July 23, 2026.
He described the prison as "very strict and even harsh", with detainees shackled during transport and visits, inadequate medical care and temperatures above 100°F.
He cited a UN Special Rapporteur's report of June 14, 2023, marked as exhibit FP6, which he said described conditions as "near to being torture".
The testimony came in proceedings concerning Abdulmalik, whose case has roots in a 2008 petition filed by his siblings Mariam Mohammed and Salim Khamis.
Arrested in February 2007 by Kenyan authorities over suspected involvement in the 2002 Paradise Hotel bombing in Mombasa, Abdulmalik was, according to the family's case, secretly handed over to United States military forces without domestic judicial extradition proceedings.
The family argued that the transfer violated his constitutional right to be arraigned in a court of law or properly charged within the statutory timeframe.
They named the Commissioner of Police and Attorney General as respondents and demanded his immediate release from the US naval prison and repatriation to Kenya.
Testifying remotely under oath, Panopoulos detailed his representation of Abdulmalik from 2018 until 2024, describing the facility as extraordinarily severe.
"I represented him while he was detained at the Guantanamo Naval Base prison," Panopoulos testified.
Panopoulos recounted the strict conditions under which detainees were maintained, noting that his client remained in physical restraints during consultations.
"All of the prisoners were kept in tight physical control, shackled all of the time while being transported, or, as I said in my statement, even when I was meeting with my client. He was shackled to the floor with metal shackles when he was transported," Panopoulos said.
Panopoulos said he prepared Abdulmalik for a 2021 Periodic Review Board hearing, after which the board recommended release, following reviews by US defence officials and congressional committees as well as US-Kenya negotiations. He said he was excluded from those negotiations and had no access to the final agreement.
Reading a reply brief dated 22 September 2023, he set out the relief sought: "Abdulmalek requests the court to relax six specific conditions of his imprisonment pending his release and transfer, pointing to continuing violations of international humanitarian law."
He said he had written to the commander of Joint Task Force Guantanamo, seeking relaxed conditions and a meeting, but "the commander has not responded to counsel's letter and denied counsel's request for a meeting".
On post-release effects, he said: "In the two years since his release, he hasn't been able to get work. The stigma of Guantanamo follows him even though he was never charged."
During cross-examination, state counsel Marwa questioned Panopoulos on the absence of formal charges and the mechanics of the initial custody transfer.
Counsel Marwa, appearing for the respondent, asked, "You know why he was never charged?" and pressed him on how Abdulmalik came into US custody.
Panopoulos asserted that the lack of charges stemmed from an absence of evidence, adding that details regarding transit remained protected under US court protective orders.
Marwa also suggested that Abdulmalik was captured by US officers in Kenya. Panopoulos replied: "He was not captured," adding that the evidence showed he was "handed over by the — by Kenyan authority".
He declined to disclose classified transfer details, citing a protective order. The judge intervened: "Mr Marwa, please just, just restrict your questioning to the evidence that this witness has given."
Justice Mburu then issued directions for the suit.
"Parties are to file and exchange written submissions. Final — these are final written submissions. The petitioner to file and serve his submissions within 14 days from today's date. Respondent to file and serve their submissions within 14 days of service by the petitioner," Justice Mburu ruled, scheduling a mention for November 25 to confirm compliance.
