The High Court of Kenya has unlimited original jurisdiction in both criminal and civil matters, making it the premier court of first instance in the country. When someone disappears under suspicious circumstances and there are grounds to believe they are being held unlawfully, their family can ask the High Court to intervene through an order of habeas corpus. This Latin expression means approximately “you shall have the body,” reflecting the central purpose of the order: requiring a person holding another individual in custody to produce them before a court.
In Kenya, the right to an order of habeas corpus is expressly protected under the Constitution. Article 25(d) identifies the right to an order of habeas corpus as a fundamental right that cannot be limited. Article 51(2) further provides that a person who is detained or held in custody is entitled to petition for such an order. This remedy is particularly relevant where a person is allegedly held by security officers or another individual without lawful authority, and their family cannot establish their whereabouts through ordinary channels.
Abshir Ahmedsadak Abdi, a Nairobi-based advocate, was allegedly abducted by armed men in military-style tactical gear along Muchai Road in Kilimani, Nairobi, on Sunday, November 1, 2026. The High Court has jurisdiction to issue habeas corpus orders under Article 165 of the Constitution and Section 389 of the Criminal Procedure Code. Section 389 allows the court to direct that a person within Kenya's jurisdiction be brought before it. Where someone is found to be illegally or improperly detained in public or private custody, the court can order their release.
The application for a habeas corpus order is normally filed by someone acting on behalf of the detained person, particularly where the individual cannot access legal representation or communicate with the outside world. A relative, friend or another concerned person can approach the High Court with information supporting the application. For someone whose whereabouts are unknown, the applicant needs grounds to believe that the individual is being held by the person or institution named in the application.
The procedure for applying for a habeas corpus order is governed by the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules, 1948, which form part of the Criminal Procedure Code. An application is initially made ex parte to a High Court judge through a chamber summons supported by an affidavit. The affidavit should provide the relevant facts, including the identity of the missing or detained person, circumstances surrounding their disappearance, information pointing to the alleged custodian and efforts made to establish their whereabouts.
If the respondents no longer have physical custody or there is insufficient evidence connecting them to the detention, the remedy may not provide the relief sought. The Judiciary's Criminal Procedure Bench Book discusses this limitation, citing Masoud Salim & Another v Director of Public Prosecutions & 3 Others, a High Court matter heard in Mombasa. The Supreme Court has also examined the scope of habeas corpus in Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC & Another (2023).
Other constitutional rights that apply in such situations include Article 29, which protects every person's freedom and security, including the right not to be deprived of freedom arbitrarily or without just cause. Where a person is arrested, Article 49 provides additional safeguards, including being informed of the reason for arrest, the right to remain silent, the right to communicate with an advocate or another person whose assistance is necessary, and the right to be brought before a court within 24 hours.
Key points
- The High Court of Kenya can issue habeas corpus orders to challenge unlawful detention.
- The right to an order of habeas corpus is a fundamental right protected under the Kenyan Constitution.
- The application for a habeas corpus order must provide a basis for the court to examine the alleged custody.
