The High Court has issued orders barring the police from summoning lawyer Danstan Omari to probe him over an alleged police raid at the former Interior Cabinet Secretary Fred Matiangi’s home.
The orders were issued by Justice Jairus Ngaah following an urgent application by lawyer Omari challenging the decision by the DCI detectives to summon him for interrogation on the Matiang'i's home raid by a "battalion" of police officers on the night of February 8 and 9, 2023.
"The leave granted do operate as a stay of enforcement of the undated Notice to Compel Attendance under Section 52(1) of the National Police Service Act, No.11A of 2011, compelling Omari to appear before the DCI on February 22, 2023, to give information in connection to the invasion and raid of the residence of the Matiang'i," Justice Ngaah ordered.
The judge further certified the lawsuit filed by Omari as urgent and granted him leave to file a substantive petition seeking to bar the Inspector General of Police, Directorate of Criminal Investigations and the Director of Public Prosecutions from compelling him to give information in connection to the invasion and raid of the Karen residence of Matiang'i with seven days.
"Omari be granted leave to apply for an order of prohibition to prohibit the IG, DCI and DPP from commencing any further criminal investigations against him, from recommending the prosecution, arresting and questioning him in respect to his performance of his professional functions in the Advocate/Client relationship between him and Matiang'i," Justice Ngaah ordered.
"The substantive motion shall be filed and served within seven days of the date of this ruling. The response to the motion shall be filed and served within seven days of the date of service of the applicant's application. The suit shall be mentioned on March 8 2023 to take directions on the manner of its disposal. It is so ordered," the Judge stated.
The directives by the court come after Omari through lawyer Dorcas Mwae filed an urged application challenging the state decision to summon him over allegations of "faking the raid" arguing that the actions are in bad faith as they are not acting on a legitimate complaint either by Matiang'i or any other complainant and there is no justification for commencing investigations against him.
"The IG, DCI and DPP actions of investigating Omari and his client for information and opinions given vide a live tv interview/broadcast is contrary to the express provisions under article 34(2)(b) of the constitution which provides that the state shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination," Lawyer Mwae states in the court papers.
While seeking the orders, Mwae told court that the undated summons by the DCI detective Michael Sang have been issued to Omari in his professional capacity as an Advocate of the High Court of Kenya to give information concerning the said raid that was conducted at the home of the Client.
"The nature of the information that Lawyer Omari is required to give, as per the said notice is privileged under section 134 of the Evidence Act, Cap 80 Laws of Kenya and the said privilege has not been waived by the client’s express consent, " Lawyer Mwae told the court.
Further, the court heard that the summons notice to Omari is a clear attempt to victimize an advocate for a spirited defence 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.
"Quite telling is the fact that neither the client(Matiang'i) nor H.E Raila Amolo Odinga has been summoned to record their statements despite the latter addressing the media on the night of the raid. The IG, DCI and DPP have only singled out an Advocate who was rendering professional legal services," lawyer Mwae informed the judge
"That notwithstanding, the Notice is an affront to the functionality of Advocates by intruding on the privileged information they receive from their clients and an attempt to intimidate advocate(s) who take up politically instigated cases to divulge information touching on their client pleas and atrocities," she added.
Further, the court heard that the action or decision to summon Omari to DCI headquarters along Kiambu road "was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the lawyer and in bad faith, is unfair, violates the Advocate- Client Privilege and is taken in or made in abuse of IG, DCI and DPP's power.
On Tuesday, February 21, Through Senior Superintendent of police Micheal Sang, the DCI summoned the lawyer says it seeks to probe his allegations of Publication of False Information contrary to section 23 of the Computer Misuse and Cyber Crimes Act 2018 amongst other offences in regard to alleged invasion and raid of Matiang'i residence.
Omari's summons came days after detectives raided the home of the former CS to collect CCTV footage following their investigations over the alleged February 8 raid.
Matiang'i's legal team claimed that the home of the former CS was raided by police. However, various agencies termed the reports as false even as the former CS was urged to prove the raid with video footage.
"Our preliminary findings have uncovered evidence of a well-coordinated and deliberate attempt to spread false information and incite public fear, unfortunately, spearheaded by a person of the standing of a former Interior Security Cabinet Secretary," DCI stated in its preliminary investigations.