Matiang’i’s home invasion: Court extends orders barring police from summoning, arresting Omari

By , K24 Digital
On Thu, 9 Mar, 2023 12:33 | 3 mins read
Lawyer Dastan Omari. PHOTO/Courtesy

The High Court has extended orders barring the government from summoning, arresting, and prosecuting Nairobi-based lawyer Danstan Omari on false claims on an alleged police raid at former Interior Cabinet Secretary (CS) Fred Matiangi’s Karen home

Justice Hedwig Ongund'i on Thursday, March 9 extended the orders restraining the Directorate of Criminal Investigations (DCI), Inspector General of Police (IG), the Attorney General (AG), and Director of Public Prosecutions (DPP), their agents or people acting under their instructions from issuing summons, warrants, arresting, charging or prosecuting lawyer Omari, his agents or people working under his instruction until April 18, 2023.

"The interim conservatory orders earlier issued in terms of prayer no 2 of the Notice of Motion dated February 21, 2023, are extended until the mentioned date," the judge ordered.

Justice Ongund'i granted the Attorney General 15 days to file his grounds of opposition to the suit lodged by lawyer Omari.

She further declined a request by DCI, IG, AG, and DPP to consolidate the constitutional suit with another related matter pending before Justice Jairus Ngaah of the Judicial Review Division in Milimani Nairobi where Omari is also challenging his summoning, arrest, and prosecution.

"I will not call for the file pending before justice Ngaah. It is for the petitioner (Lawyer Omari) to decide whether having these two matters heard in different's courts is advancing the cause of justice," Justice Ongund'i stated.

The first case was filed at the judicial review division and orders were issued and the second case was filed at the constitutional division which also has ordered.

Omari through Lawyer Shadrack Wambui objected to the consolidation of the said cases saying that they are very different as one questions the process and the other one addresses the fundamental threat to freedom.

At the same time, the court has also allowed the LSK who are interested parties in the matter has been allowed to file their replying affidavit in support of the petition by Omari.

Omari's prayers in court

In the suit, Omari challenges the state's move to summon him saying that the same is an attempt to victimize an advocate "for a spirited defense of his client and is only meant to harass, silence and intimidate him, and by extension all Advocates of the High Court from exercising their noble duty of advancing the rule of law".

"The said summons is an affront to the functionality of Advocate by intruding to the communications/information they hold with their clients and an attempt to intimidate advocate(s) who take up briefs and divulge information touching on their client pleas and atrocities," Omari states in his court papers.

Omari was scheduled to appear before the DCI to give information in connection to the alleged invasion and raid of the residence of the former Cabinet Secretary home raid by allegedly a "battalion" of police officers on the night of February 8 and 9,2023.

Omari's lawyers also contend that his right to privacy of his communication with his client contrary to Article 31(d) will be infringed should he honour and be compelled in the manner sought in the notice to appear by the DCI.

The lawyer further argues that the intended charges are therefore designed to muzzle and deny him his freedom of expression.

"The Petitioner’s freedom of expression as guaranteed by Article 33(1) has been infringed as the respondent wants to link and charge him with fabricated charges of dissemination of false information despite this not being one of the limitations under the constitution on the freedom of expression," Omari's lawyer Dorcas Mwae states.

"The action or decision to summon lawyer Omari contravenes his legitimate expectation as an advocate that he will not be turned into a witness against his own client based on information volunteered by the Client in confidentiality in furtherance of the advocate-client relationship," Mwae adds.

She argues that DCI, IG, DPP, and AG having been sued for organizing a raid at the client’s residence, ought to have responded to the said suit rather than persecuting the advocates acting against him by harassing him through summons.

"In the circumstances, the notice is issued in bad faith and is the most flagrant abuse of power by the DCI, IG, DPP and AG," Mwae states.

In his petition, Omari now wants the court to issue a declaration that he should not be compelled to appear before the DCI on 22nd February 2023 or on any other date to give information in connection to the invasion and raid of the residence of the Matiang’i since the same is in breach of section 134(1) of the Evidence Act.

" An order of prohibition to prohibit the DCI, IG, DPP, and AG from compelling Omari to give information in connection to the invasion and raid of the residence of the Matiang’I in contravention of the advocate-client privilege," the petition reads.

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