The High Court has ruled that there is no evidence to prove that missing security analyst and former military officer Mwenda Mbijiwe was in the custody of state agencies at the time he disappeared in June 2021.

Delivering judgment on Wednesday, High Court Judge Martin Muya dismissed an application filed by Mbijiwe’s mother Jane Gatwiri.

She had moved to court seeking orders to compel authorities in Kenya to produce her son or provide details of his whereabouts.

The judge said that although Mbijiwe’s disappearance is still unresolved and investigations remain wanting, there was no evidence showing that he was under arrest, detention or control of the police or any other state agency.

“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.

“When the second applicant (Jane Gatwiri) first made a report of this, it was in the nature of a missing person, not an abduction.”

However, the court pointed out that it remains unclear whether any meaningful investigations were conducted at the recovery scene or on the vehicle itself to establish leads on the disappearance.

The judge expressed concern that despite the long delay, key investigative steps such as forensic analysis, call data retrieval and digital tracking were only carried out years after Mbijiwe went missing.

“The investigations into the disappearance of the first applicant are one-dimensional in substance,” he said.

The court also considered submissions that sought orders compelling production of Mbijiwe’s IMEI history, call data records and geolocation information.

However, it held that the present application was not properly framed as one requiring the court to supervise investigations or issue directions on how the investigative agencies should conduct their work.

Judge Muya pointed out that courts are only required to determine whether constitutional thresholds for relief have been met.

In this case, the evidence did not demonstrate that Mbijiwe was ever in the custody of the respondents or any known State organ at the material time.

Citing constitutional principles on the duty to conduct effective investigations into missing persons cases, the court acknowledged concerns raised regarding the pace and depth of the probe.

However, it found that such concerns alone were insufficient to establish unlawful detention or justify the orders 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 ruled.

Mbijiwe, a former military officer and security analyst, has been missing since June 2021, which has raised over over his whereabouts.

Speaking shortly after the ruling, she expressed dissatisfaction with the decision and said she would appeal the judgment after consulting her lawyer, Evans Sondieki.

• A Tell Media report / By Elizabeth Were