NAIROBI, Kenya, Jul 9 – The High Court has ordered the Office of the Director of Public Prosecutions (ODPP) to pay advocate Abdinoor Maalim Ismail Sh6.9 million in damages after finding that he was prosecuted without sufficient evidence in connection with the 2019 DusitD2 terror attack.
In its judgment, the court held that the ODPP violated Article 157(11) of the Constitution by initiating criminal proceedings that lacked a factual basis, amounting to an abuse of the legal process and a violation of the advocate’s constitutional rights.
The court awarded Ismail Sh5 million in general damages for the infringement of his constitutional rights and an additional Sh1.9 million in special damages to cover legal costs incurred during his defence. The ODPP was also ordered to bear the costs of the petition.
Ismail, an advocate and director of Seatech Limited, was arrested in January 2019 in the aftermath of the DusitD2 terror attack and accused of aiding and abetting terrorism as well as financing terrorism through his company’s M-Pesa business operations.
He remained in custody for 39 days before being formally charged and subsequently stood trial for three years before being acquitted in March 2022 under Section 210 of the Criminal Procedure Code after the trial court found no evidence linking him to the offences.
Although the court found that Ismail had not proved malice on the part of prosecutors, it ruled that the ODPP failed in its constitutional obligation to ensure criminal charges are supported by credible evidence before invoking the coercive powers of the State.
The judge observed that the prosecution exposed the advocate to prolonged detention and an extended criminal trial, while also delaying his admission to the Roll of Advocates and causing significant personal and professional harm.
However, the court declined to hold the Inspector General of Police liable for the advocate’s continued detention, noting that the extended detention period had been authorised through lawful court orders.
The court further underscored that constitutional damages are intended not only to compensate victims but also to vindicate constitutional rights, deter future violations and reinforce the rule of law by ensuring prosecutorial authority is exercised responsibly and only where sufficient evidence exists.
