Nairobi TIMES

By Sam Alfan.

The killing of former director of the Bobmil Group of Companies Baunty Bharat Kumar Shah by masked police officers at his home in Westlands eight years ago was unlawful, the Court of Appeal has said.

A three-judge bench comprising Justices David Musinga, Mumbi Ngugi, and George Odunga further ruled that the actions of the Attorney General, Inspector General (IG) of Police, and the Cabinet Secretary for Interior, violated the Constitution.

“A declaration is hereby made that the action on the part of the AG, IG, and Interior CS, through their agents, servants, officials, and persons working under their direction or instructions in executing and killing the late Bunty Bharat Kumar Shah, was contrary to the provisions of the Constitution which provides for the right to life, and the right to parental care and guidance in respect of the deceased’s minor son,” the judges stated.

While overturning an earlier judgment, the court directed the matter be returned to the High Court for the assessment of damages.

The judges emphasized that constitutional courts are empowered to determine State responsibility for human rights violations, while criminal courts deal with individual criminal culpability.

They dismissed arguments by the AG, IG, and Interior CS that constitutional remedies should not be granted before criminal investigations are completed, terming the position as a conflation of legal processes.

“There is no legal or practical barrier preventing the police from completing investigations or the DPP from prosecuting individuals found responsible for the deceased’s death. Victims or their families are entitled to pursue multiple legal avenues concurrently, including tort claims, criminal proceedings, and constitutional petitions,” the court said.

Anjlee Parveen Kumar Sharma, the widow of the late Shah, challenged, which dismissed her case as being premature.

The court had found that the Director of Public Prosecutions (DPP) had not received the final inquiry file from the Directorate of Criminal Investigations (DCI), and therefore no decision to charge any individuals had been made.

The judge had also held that the petition was premature and struck it out on grounds of non-justiciability.

The court, however, hadurged state agencies to expedite the investigation, noting that five years had elapsed since the incident without any accountability.

The fatal shooting occurred in the early hours of October 21, 2017, at Shah’s residence in Westlands.

According to the petition, at approximately 2:49 a.m., a convoy of police vehicles—including an armored personnel carrier—forcefully entered the compound by ramming the gate.

Alarmed by the commotion, Shah reportedly opened a bedroom window to assess the situation and was shot in the heart by a police marksman. He died on the spot.

Sharma claimed that police officers blocked an ambulance from accessing the compound, and later disabled several CCTV cameras on the premises.
She added that police publicly admitted through media reports that the operation was based on faulty intelligence.

Despite reporting the incident to Parklands Police Station and the Independent Policing Oversight Authority (IPOA), she said no meaningful action was taken. Her legal team also wrote to the DPP, who directed the DCI to investigate and report.

Sharma claimed this sequence of events amounted to an implicit admission of wrongdoing by the State.

Sharma damages for violations of multiple constitutional rights, including the right to life, the right to dignity, freedom and security of the person, the right to family and the child’s right to parental care and protection.

She sought to be compensated for damages including Sh 100 million for unlawful execution, Sh18 million for denial of parental care to the deceased’s son, Sh292 million in lost earnings, Sh20 million for emotional harm and psychological suffering, Sh200 million for loss of a life plan, nd a further Sh100 million in exemplary and punitive damages.

She also requested an order directing the DPP to arrest and prosecute those responsible for Shah’s death.

The AG, IG, and Interior CS opposed the petition, arguing that it did not raise constitutional issues and should instead be addressed as a civil suit under tort law. They maintained that the claims were based on statutory causes of action under the Law Reform Act and the Fatal Accidents Act.

They also questioned the admissibility of the CCTV footage, claiming it had been compressed into a single file, thus compromising its integrity and breaching the Evidence Act.

Further, they denied direct police involvement in the shooting and insisted that investigations were still ongoing.

In her testimony, Sharma recounted the traumatic events of the night, including the 45-minute delay caused by police in allowing emergency responders to reach her husband.

She testified that Shah earned a monthly salary of Sh600,000, received an annual bonus of Sh500,000, and held shares in various companies.

She also detailed efforts to preserve CCTV footage and her frustrations with IPOA, police, and the DPP, which led to the filing of the constitutional petition.

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