Supreme Court Uphold IPOA Mandate In A Landmark Judgement

[5] Consequently, the appellants sought the following orders:
i. A declaration that the use of lethal force for law enforcement purposes is an extreme measure that should be resorted to only when strictly necessary to protect life or prevent serious injury from an imminent threat. The intentional taking of life by police officers is permissible only if it is strictly necessary to protect life from an imminent threat. Thus, the use of lethal force against Arshad Sharif by shooting him on the head was arbitrary, disproportionate, unlawful and unconstitutional.

ii. A declaration that the unlawful shooting to death of Arshad Sharif by the Kenyan police officers at Kajiado County, Kenya on October 23, 2022 violated his right to life under Article 26 of the Constitution; right to equal benefits and protection of the law under Article 27 of the Constitution; right to dignity under Article 28 and right to security of the person under Article 29 of the Constitution.

iii. A declaration that the appellants are entitled to effective remedies as guaranteed by Article 23 of the Constitution; Article 2(3) of the ICCPR; Article 14 of CAT and Article 7(1) of the Banjul Charter for the violations of Arshad Sharif’s fundamental rights and freedoms SC Petition No. E042 of 2025 Page 5 of 39 through the unlawful and admitted shooting of Arshad Sharif by the
Kenyan Police officers at Kajiado County on October 23, 2022.

iv. A declaration that the failure to conduct independent, prompt and effective investigations and to commence prosecution for the killing of Arshad Sharif by Kenyan police officers further violates the positive obligation to investigate and prosecute violations of the right to life, torture, inhuman and degrading treatment under Article 21(1) of the Constitution, Article 6 and 7 of CAT; Article 2 and 7 of the ICCPR.

v. A declaration that Articles 244(a) and 246(3) of the Constitution command the respondents to punish and prosecute police officers who killed Arshad Sharif. Consequently, a mandatory order do issue compelling the respondents to conclude investigating, take disciplinary action and charge in court the police officers who shot and killed Arshad Sharif at Kajiado County, Kenya, on October 23, 2022.

vi. An order compelling the respondents to supply to the appellants copies of all documents, files, reports, letters, electronic mail (email) or evidence, in any medium, including but not limited to films, photographs, videotapes in their custody or possession relating to the shooting in question.

vii. An order directing the 1st respondent to issue a public apology, including an acknowledgement of the facts, and acceptance of responsibility to the family of Arshad Sharif within 7 days of this court’s order.

viii. Damages for violation of the 1st appellant’s constitutional rights.

ix. Costs of this suit.

[16] Aggrieved by the decision of the High Court, the 2nd respondent, on one hand, moved the Court of Appeal vide Civil Appeal No. E082 of 2024, seeking that the appeal be allowed; the Judgment, decree and orders of the High Court be set aside; and the costs of the appeal. The appeal was premised on twelve grounds of appeal in its Memorandum of Appeal, that the learned Judge erred in:
i. Failing to find that the 2nd respondent conducted independent investigations into the shooting of Arshad in accordance with its mandate and satisfied the requirements for independent, prompt, effective and accountable investigations;

ii. Finding the 2nd respondent liable for alleged violations of constitutional rights and fundamental freedoms by officers despite the officers not being under the command and control or employment of the 2nd respondent;

iii. Finding that the respondent had failed to discharge the burden of proof;

iv. Finding that the 2nd respondent was liable for the failure to act on the outcome of its investigations by punishing the police officers through initiating prosecutions or disciplinary action, despite the 2nd respondent’s lack of prosecutorial mandate in law;

v. Making blanket findings of constitutional violations against the respondents without considering their separate constitutional mandate in the circumstances of the matter;

vi. Failing to take into consideration the 2nd respondent’s pleadings, submissions and evidence in arriving at its conclusion;

vii. Failing to find that the disclosure of information related to the investigations sought by the 1st appellant was exempted/limited in law;

viii. Issuing mandatory orders requiring the 2nd and 3rd respondents to provide the 1st appellant with an update on the status of the investigations and recommendations arrived at without considering that the matter was under consideration by the 3rd respondent;

ix. Issuing orders requiring the 2nd respondent to conclude investigations despite clear uncontroverted evidence that the 2nd respondent had concluded the investigations and forwarded the files to the 3rd respondent;

x. Granting damages against the respondents jointly and severally without considering the particular mandate of each of them; and

xi. Awarding the 1st appellant exaggerated and exorbitant general damages
of Kshs. 10,000,000.00 without any factual or legal basis.

iii. 2nd Respondent’s submissions
[49] The 2nd respondent’s submissions opposing the appeal are dated 11th December 2025 and filed on 16th December 2025. On whether the Court of Appeal absolved the 2nd respondent of all blame, it is urged that the Court of Appeal found that the 2nd respondent had failed to provide the 1st appellant with a status update on its investigations, in breach of its statutory mandate.

Further, the appellate court issued an appropriate remedy by directing the 2nd respondent to provide the appellant with an update on its investigations, its recommendations and responses from the 3rd respondent. Citing Imanyara [supra], the respondent contends that the award of appropriate reliefs is discretionary and the award of damages is not mandatory for all constitutional violations. Consequently, it is the 2nd respondent’s case that an order for correction of a violation, as was directed by the Court of Appeal, is a sufficient remedy under Article 23(3) of the Constitution.

[50] On whether the appellants have introduced new issues before this Court, the 2nd respondent submits that the appellants did not prefer a claim for the violation of Article 21(3) of the Constitution before the trial court, but only introduced it before the Court of Appeal. It asserts that parties are bound by their pleadings, and the appellants, therefore, cannot make claims outside their initial pleadings. It cites Osebe Vs IEBC & 2 others [2019] KESC 56(KLR); Odinga & another Vs IEBC [supra]; and Simon P. Kamau & 19 Others Vs Teachers Service Commission [2015] KEHC 5983 (KLR) to argue that taking up novel issues at a second appellate stage, which have not been adjudicated upon by the superior courts below, amounts to assuming the jurisdictional mandate of other courts below.

[51] On whether the Court of Appeal properly exercised its appellate mandate in reappraising the record, the 2nd respondent submits that the appellate court was well within its jurisdiction under Section 3(2) of the Appellate Jurisdiction Act and
SC Petition No. E042 of 2025 Page 29 of 39 Rule 31 of the Court of Appeal Rules. The respondent relies on the persuasive
decisions of Bethwel Wilson Kibor Vs Republic [2009] KECA 143 (KLR) and Gitobu Imanyara & 2 Others Vs Attorney General [2006] KECA 557 (KLR) to buttress the principle that, being a first appeal, it is trite law, that the court must re-evaluate the evidence and make its own findings or draw its own conclusions, bearing in mind that it has neither seen nor heard the witnesses and should make due allowances in that respect.

[52] On whether the Court of Appeal correctly refrained from ordering the 3rd respondent to charge the perpetrators, the respondent submits that this ground is wholly devoid of merit and a misapprehension of the constitutional architecture
governing criminal investigations, disciplinary authority over police officers, and prosecutorial independence. It urges that Article 157 of the Constitution vests the 3rd respondent with the authority to exercise prosecutorial powers, which consist
of the decisions to institute, take over, continue, or discontinue criminal proceedings. The 2nd respondent submits that the Court of Appeal appraised itself with the constitutional mandates, powers, and responsibilities of the respondents and acted within the permissible intrusion by the Judiciary.

[53] On the award of damages, the 2nd respondent submits that the Court of Appeal applied sound principles of appellate review in quantum when it considered the materials before it and reached a reasoned conclusion. It submits that the appellants have not met the high threshold required to displace the trial court’s discretionary assessment of damages, as affirmed by the Court of Appeal.