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 KES 6.9 million in damages. This landmark ruling stems from the ODPP's unconstitutional prosecution of Ismail in connection with the 2019 DusitD2 terror attack, where charges were initiated without sufficient evidential basis. The court found that the ODPP violated Article 157(11) and Article 27 of the Constitution, constituting an abuse of the legal process and infringing the advocate's rights. The award comprises KES 5 million in general damages for constitutional rights infringement and KES 1.9 million in special damages for legal costs, underscoring the state's accountability for prosecutorial overreach.

In a significant judgment delivered on July 9, 2026, the High Court of Kenya ordered the Office of the Director of Public Prosecutions (ODPP) to pay advocate Abdinoor Maalim Ismail KES 6.9 million in damages. This ruling arises from the ODPP's prosecution of Mr. Ismail in connection with the 2019 DusitD2 terror attack, a prosecution that the High Court ultimately found to have been initiated without sufficient evidence, thereby violating his constitutional rights.

This decision carries substantial implications for the exercise of prosecutorial powers in Kenya, reinforcing the constitutional safeguards against arbitrary state action. It highlights the judiciary's role in holding state organs accountable and ensuring that the coercive powers of the state are exercised responsibly and within the confines of the law. For legal practitioners, the judgment serves as a critical reminder of the avenues available for redress against unwarranted prosecutions and the evolving landscape of state liability.

This article will delve into the background of the case, examine the statutory and doctrinal context governing prosecutorial discretion in Kenya, analyze the High Court's reasoning, and discuss the broader implications of this ruling for legal professionals and the administration of justice.

The Office of the Director of Public Prosecutions (ODPP) is established under Article 157 of the Constitution of Kenya, 2010, as the national prosecuting authority. Its mandate includes instituting and undertaking criminal proceedings, taking over and continuing any criminal proceedings, and discontinuing such proceedings at any stage before judgment. Crucially, Article 157(11) stipulates that in exercising its powers, the ODPP "shall 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."

The case against Abdinoor Maalim Ismail originated in the aftermath of the tragic 2019 DusitD2 terror attack. Mr. Ismail, an advocate and director of Seatech Limited, was arrested in January 2019 and accused of aiding and abetting terrorism, as well as financing terrorism through his company's M-Pesa business operations. He was detained for 39 days before being formally charged and subsequently endured a three-year trial. In March 2022, the trial court acquitted him under Section 210 of the Criminal Procedure Code, finding no evidence linking him to the alleged offences. This acquittal formed the basis of his petition to the High Court, seeking damages for the alleged violation of his rights.

In the petition *Abdinoor Maalim Ismail v Office of the Director of Public Prosecutions*, Justice Patricia Nyaundi (also referred to as Justice Patricia Mande in some reports) of the High Court meticulously examined the ODPP's conduct. The court found that while Mr. Ismail had not proven malice on the part of the individual prosecutors, the ODPP, as an institution, had failed in its constitutional obligation to ensure that criminal charges are supported by credible evidence before invoking the coercive powers of the State. The judgment explicitly stated that the ODPP violated Article 157(11) of the Constitution by initiating criminal proceedings that lacked a factual basis, thereby amounting to an abuse of the legal process.

Furthermore, the High Court held that the prosecution infringed Mr. Ismail's constitutional right to equal protection and equal benefit of the law, as guaranteed by Article 27 of the Constitution. The judge observed that the prosecution subjected the advocate to prolonged detention and an extended criminal trial, which not only caused significant personal and professional harm but also delayed his admission to the Roll of Advocates. The court underscored that constitutional damages serve a dual purpose: to compensate victims for rights infringements and to vindicate constitutional rights, deter future violations, and reinforce the rule of law by ensuring prosecutorial authority is exercised responsibly.

The award of KES 6.9 million was broken down into KES 5 million for general damages, compensating for the infringement of constitutional rights, and KES 1.9 million in special damages, covering the legal costs incurred during his defence. This distinction is crucial, as it recognizes both the direct financial burden and the broader impact on fundamental rights. 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.

This ruling aligns with a growing trend of judicial scrutiny over prosecutorial discretion, emphasizing that the ODPP's independence under Article 157(10) is not absolute and is subject to constitutional oversight, particularly concerning the prevention of abuse of the legal process. It sets a precedent for holding the state accountable for prosecutions that are not grounded in sufficient evidence, even in the absence of proven malice, thereby strengthening the protection of individual liberties against potential state overreach.

The High Court's decision in *Abdinoor Maalim Ismail v Office of the Director of Public Prosecutions* marks a pivotal moment in Kenyan jurisprudence, affirming the principle that state prosecuting authorities are not immune from liability when they fail to adhere to constitutional principles. For practising attorneys, this judgment provides a robust legal basis for challenging prosecutions that lack evidential foundation and for seeking redress for clients whose rights have been violated by an abuse of the legal process. It reinforces the importance of Article 157(11) of the Constitution as a critical safeguard against arbitrary state power.

Practitioners should take note of the court's emphasis on the ODPP's constitutional duty to ensure charges are supported by credible evidence. This necessitates thorough pre-charge investigations and a careful review of evidence before instituting criminal proceedings. Clients who have faced prolonged detention or trials leading to acquittal due to lack of evidence now have a clearer path to seek constitutional damages. This ruling serves as a powerful reminder to all state organs, particularly those vested with prosecutorial powers, that accountability for constitutional breaches is paramount, and the pursuit of justice must always be tempered with respect for individual rights and due process.