Court of Appeal Judge Justice Sankale Ole Kantai has been awarded Sh 2.5 million after the High Court ruled that his arrest, overnight detention and warrantless phone search during investigations into businessman Tob Cohen’s murder violated his constitutional rights.
The court found that the Directorate of Criminal Investigations and the Inspector General of Police infringed on the judge’s rights to dignity, liberty, privacy, property and fair administrative action.
Kantai moved to court challenging his treatment by detectives, who arrested him at his home in February 2020 and detained him overnight at Muthaiga Police Station. According to his petition, officers arrived in a convoy of six police vehicles and seized his mobile phone without a search warrant or court order. Investigators retained the device for about three months, extracting and examining private messages and other personal information.
The judge, represented by lawyer Peter Wanyama of Manyonge Wanyama & Associates LLP, argued that investigators lacked sufficient evidence linking him to Cohen’s killing. He also challenged the investigation’s focus on conveyancing transactions he had handled years earlier while practising at Kantai & Company Advocates, saying the transactions were unrelated to the murder.
Despite being required to report to DCI headquarters six times over an 11-month period, Kantai was never charged in connection with the killing. The Director of Public Prosecutions subsequently closed the inquiry against him in August 2021, citing a lack of credible or admissible evidence linking him to the murder.
In its determination, the High Court found violations of Articles 10, 28, 29, 31, 40 and 47 of the Constitution. It emphasised that arrest and detention cannot substitute for proper investigations and that police must exercise their powers within constitutional limits.
The court also declared the material extracted from Kantai’s phone inadmissible under Article 50(4), which addresses evidence obtained through violations of fundamental rights. Alongside the damages award, the court restrained the police and DCI from further harassing or summoning the judge over the concluded investigation.
