The High Court ruled that no evidence shows that missing security analyst and former military officer Mwenda Mbijiwe was in the custody of state agencies when he disappeared in June 2021.
Judge Martin Muya dismissed a court application filed by Mbijiwe’s mother, Jane Gatwiri, during a ruling delivered on Wednesday. Gatwiri had asked the court to order the authorities to produce her son or explain where he was.
The court said that even though Mbijiwe’s disappearance still remains unsolved and investigations have not satisfied the court, there was no proof that the State arrested him, detained him, or controlled him.
“There is no evidence to indicate whether the first applicant (Mbijiwe) was in legal custody of the rest of his family or under the custody of a specified or unfathomable person or persons,” the judge observed.
The court heard that Mbijiwe’s mother was in Meru when he went missing, meaning she never actually saw what happened. Instead, she based her entire testimony on what Edward Mwangi Macharia, the man who rented Mbijiwe a vehicle, told her.
According to the court, Macharia allegedly told Mbijiwe’s mother that captors had kidnapped her son. Yet, even though the court ordered Macharia to appear and testify, he never showed up to give evidence for the petitioners.
The judge pointed out that the court only had firsthand testimony from Mbijiwe’s mother, who was nowhere near the scene when her son vanished. Because of this, no evidence connected any of the respondents to Mbijiwe’s alleged detention or disappearance.
“When the second applicant (Gatwiri) has always made a report of this, it was in the nature of a missing person, not an abduction.”
The court added that investigators still have not clarified whether authorities carried out meaningful inquiries at the recovery scene or on the vehicle itself to generate leads about what happened.
The judge also expressed concern that, despite the long delay, authorities only carried out major investigative steps, such as forensic analysis, call data retrieval, and digital tracking, years after Mbijiwe disappeared.
“The investigations into the disappearance of the first applicant are one-dimensional in substance,” he said.
The court also heard arguments seeking orders to compel production of Mbijiwe’s IMEI history, call data records, and geolocation information.
However, the court said the application did not properly ask the court to supervise the investigation or to issue instructions on how investigative agencies should conduct their work.
Judge Muya said courts only need to determine whether constitutional requirements for relief apply. He added that the evidence did not show that Mbijiwe ever came under the custody of the respondents or any other identifiable state organ at the relevant time.
The court cited constitutional principles that require effective investigations in missing-person cases. It acknowledged the concerns about the speed and depth of the probe, but it ruled that those issues alone could not prove unlawful detention or support the orders that Gatwiri sought.
“From the evidence adduced in court, a prima facie case has not been made to the effect that the first applicant was in illegal custody of the respondents. Secondly, whether the applicant was being illegally detained by a specified or identifiable person other than the respondents,” Justice Muya said.
Mbijiwe, a former military officer and security analyst, has remained missing since June 2021.
After the ruling, Gatwiri said she felt dissatisfied with the decision and would appeal after consulting her lawyer, Evans Ondieki.
