The Court of Appeal, on September 12, declared that the fatal shooting of Nairobi businessman Bunty Bharat Kumar Shah by security officers was unlawful and unconstitutional.
In a judgment delivered on Friday, the court overturned an earlier decision by the High Court and held the State responsible for violating Shah’s fundamental rights, including his right to life.
The appellate bench comprising Justices D.K. Musinga (President), Mumbi Ngugi, and G.V. Odunga found that the actions of the police and State agents operating under the direction of the Attorney General, Inspector General of Police, and the Cabinet Secretary for Interior amounted to an unlawful execution.
“A declaration is hereby made that the action on the part of the 1st, 2nd and 3rd respondents… in executing and killing the late Mr. Bunty Bharat Kumar Shah was unlawful, illegal, and contrary to the Constitution,” the judges ruled.
Court ruling on Bunty Shah’s death
The case stemmed from a constitutional petition filed in 2018 by Anjlee Parveen Kumar Sharma, Shah’s widow, following his killing during what was claimed to be a law enforcement operation based on faulty intelligence.
The High Court had dismissed her claims in November 2022, prompting the appeal.
In its decision, the Court of Appeal emphasised the role of constitutional courts in determining State liability for rights violations, separate from the function of criminal courts in establishing individual culpability.
“There is no legal or practical barrier preventing the police from completing their investigations or the DPP from prosecuting any individual found responsible for the deceased’s death,” the court noted.
“Victims or their families are entitled to pursue multiple legal avenues concurrently.”
Among the orders issued:
- The appeal was allowed in full.
- The High Court judgment by Justice Ong’udi was set aside.
- A declaration was issued that the killing was unconstitutional.
- The matter was remitted to the High Court (before a different judge) for assessment of damages.
- The respondents, the Attorney General, Inspector General of Police, and Cabinet Secretary for Interior, were ordered to bear the costs of the appeal.
The court also acknowledged the rights of Shah’s minor son, referred to as YBS in the judgment, stressing the constitutional guarantees of parental care and guidance, which were violated because of the killing.
How Bunty Shah was mistakenly shot by the police
In a press statement dated October 22, the National Police Service confirmed the incident.
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“On 21st October 2017, at about 4 pm, information obtained by the Police indicated that some unidentified individuals were plotting to stage multiple attacks in Nairobi using weapons that were kept in an unoccupied house along Peponi Road,” the then head of the Directorate of Criminal Investigations (DCI), George Kinoti, noted.
Having evaluated the information, a quick check confirmed that there was indeed such a building alongside that physical address that was adjacent to other properties that were occupied.
In view of the real and imminent danger to public security, a further and thorough check of the unoccupied property became necessary and had to be done immediately.
Unfortunately, during the operation, the officers were attacked by assailants from the balcony of a building they were crossing.
The unidentified person continued firing even after being cautioned, forcing the officers to respond.
In the ensuing exchange of fire, an Individual, who was identified as Bunty Shah, was fatally injured.
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“We regret the unfortunate death and wish to assure the public that a thorough inquiry into the circumstances of the shooting has been instituted,” read the national police statement.
“We further wish to state that contrary to rumours being peddled on social media, the operation had no direct relation to any other previous operation conducted by the Police,” it added.
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