High Court Orders ODPP to Pay Advocate Sh6.9mn Over Dusitd2 Terror Prosecution

The High Court of Kenya has ordered the Office of the Director of Public Prosecutions (ODPP) to pay advocate Abdinoor Maalim Ismail Sh6.9 million in damages. The ruling stems from the ODPP's prosecution of Ismail in connection with the 2019 DusitD2 terror attack, which the court found to have been initiated without sufficient evidential foundation. Justice Patricia Mande held that the ODPP violated Ismail's constitutional rights under Article 157(11) and Article 27, constituting an abuse of the legal process. This judgment underscores the constitutional duty of the ODPP to ensure that criminal charges are supported by credible evidence, setting a significant precedent for prosecutorial accountability in Kenya.

In a landmark decision, the High Court of Kenya has directed the Office of the Director of Public Prosecutions (ODPP) to compensate advocate Abdinoor Maalim Ismail with Sh6.9 million for malicious prosecution. The ruling, delivered by Justice Patricia Mande, found that the ODPP pursued criminal charges against Ismail in relation to the 2019 DusitD2 terror attack despite a glaring lack of supporting evidence. This judgment is not merely about monetary compensation; it represents a critical affirmation of constitutional rights and a stern reminder to public prosecutors of their fundamental duty to uphold justice and prevent the abuse of legal processes.

The case of Abdinoor Maalim Ismail highlights the profound impact that unmeritorious prosecutions can have on individuals, particularly legal professionals whose reputations are paramount. The High Court's emphasis on the ODPP's constitutional obligations, even in the absence of proven malice, marks a significant development in the jurisprudence surrounding prosecutorial accountability in Kenya. This article will delve into the legal framework governing malicious prosecution and the ODPP's mandate, analyze the High Court's reasoning, and explore the broader implications of this decision for legal practitioners and the administration of criminal justice in the country.

The tort of malicious prosecution in Kenya, rooted in common law, requires a plaintiff to establish several key elements to succeed. Traditionally, these include proving that criminal proceedings were instigated by the defendant, that the proceedings terminated in the plaintiff's favour, that they were instituted without reasonable and probable cause, and crucially, that they were actuated by malice on the part of the defendant. Reasonable and probable cause has been defined as an honest belief in the guilt of the accused based on reasonable grounds, such that any ordinary prudent and cautious person would conclude the accused was probably guilty.

However, the constitutional dispensation introduced by the Constitution of Kenya, 2010, has significantly shaped the landscape of prosecutorial duties and accountability. Article 157(11) mandates the Director of Public Prosecutions (DPP) to have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process. Furthermore, Article 50 guarantees every accused person the right to a fair trial, including the presumption of innocence, while Article 27 ensures equal protection and equal benefit of the law. The National Prosecutions Service Act, Cap 430, further outlines the organisation, management, and guiding principles for the ODPP, reiterating the need to do justice and prevent abuse of legal process. This constitutional and statutory framework provides a robust basis for challenging prosecutorial actions that fall short of these high standards, even where the stringent common law element of malice might be difficult to prove.

Advocate Abdinoor Maalim Ismail, a director of Seatech Limited, was arrested in January 2019 following the DusitD2 terror attack. He was subsequently charged with aiding and abetting terrorism and financing terrorism through his company's M-Pesa business. Ismail endured 39 days in custody before being formally charged and faced trial for approximately three years. He was eventually acquitted in March 2022 under Section 210 of the Criminal Procedure Code, with the trial court explicitly finding no evidence linking him to the alleged offences.

In his petition before the High Court, Ismail sought redress for the violation of his constitutional rights. Justice Patricia Mande, in her judgment, acknowledged that while the petitioner had not successfully proven malice on the part of the ODPP, the prosecution's actions nonetheless constituted a breach of constitutional duty. The court found that the ODPP had preferred criminal charges against Ismail without a sufficient evidential foundation, thereby acting inconsistently with Article 157(11) of the Constitution and failing in its duty to prevent the abuse of the legal process. This failure, the court held, also violated Ismail's right to equal protection and equal benefit of the law under Article 27.

The High Court's reasoning marks a significant shift, or at least an expansion, in the grounds for holding the ODPP accountable. While traditional malicious prosecution claims often falter on the difficult hurdle of proving malice, this judgment establishes that a prosecution initiated without a factual basis capable of sustaining charges can, by itself, amount to a constitutional violation and an abuse of process. 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 the legal costs incurred during his defence, totaling Sh6.9 million. This award reflects the judiciary's commitment to safeguarding individual liberties against overzealous or inadequately prepared state prosecutions. The decision reinforces the principle that the ODPP's independence, as enshrined in Article 157(10) of the Constitution, is not absolute but is tempered by the constitutional imperative to act justly and prevent abuse of power.

The High Court's decision in *Abdinoor Maalim Ismail v Office of the Director of Public Prosecutions* serves as a potent reminder to all public prosecutors of their constitutional mandate and the severe consequences of failing to adhere to it. For practitioners, this judgment provides an enhanced avenue for challenging prosecutions that lack a robust evidential basis, even where direct malice may be difficult to prove. It underscores that the ODPP's duty to prevent the abuse of the legal process, as enshrined in Article 157(11) of the Constitution, is a justiciable right that can lead to significant damages for affected individuals.

Going forward, legal professionals should meticulously scrutinize the evidential foundation of charges preferred by the ODPP, particularly in complex cases such as terrorism-related offences. This ruling encourages a more rigorous approach to pre-charge investigations and evidential review within the ODPP, ensuring that the coercive powers of the State are exercised responsibly and constitutionally. Practitioners should watch for how this precedent influences future prosecutorial conduct and whether it leads to a more cautious and evidence-driven approach to initiating criminal proceedings across the board, ultimately strengthening the protection of fundamental rights in Kenya's criminal justice system.