Siddique w/o Arshad Sharif & 2 others v Attorney General & 4 others
The bottom line
#Supreme Court upholds DPP’s independence, cannot be forced to charge police in Arshad Sharif case.
What this practically means
#The Supreme Court dismissed an appeal by the family of Arshad Sharif, a journalist killed by police in October 2022. The Court ruled that the Director of Public Prosecutions (DPP) cannot be ordered to bring criminal charges against any officer. It also said a claim for torture requires proof the victim was alive and under the tormentor’s control – here, no such evidence was given. The family’s award of 10 million shillings in damages was not increased.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a violation of the deceased’s fundamental rights and freedoms.
- 2.Whether the 2nd respondent exhaustively executed its investigative mandate.
- 3.Whether this Court can compel the 3rd respondent to prosecute the officers responsible for the fatal shooting of the deceased.
- 4.Whether this Court should interfere with the award of damages by the trial court.
Key legal issues
#Whether the fatal shooting of the deceased constituted torture, cruel, inhuman, or degrading treatment under Article 29 of the Constitution.
The Supreme Court held that the fatal shooting did not amount to torture, cruel, inhuman, or degrading treatment because the appellants failed to produce evidence that the deceased was alive and under the tormentor's control, or that death was not instantaneous.
The Court reasoned that torture, inhuman, cruel, or degrading treatment presupposes the victim is alive and under the custody, control, or influence of the tormentor. The appellants needed to produce medical or scientific evidence, for example, that death was not instantaneous and the deceased was exposed to pain and suffering before succumbing. No such evidence was tabled before the trial court, so the Court of Appeal correctly declined to find a violation of Article 29.
Whether the 2nd respondent (IPOA) exhaustively executed its investigative mandate.
The Supreme Court agreed with the Court of Appeal that IPOA had exhaustively carried out its investigative mandate, but faulted it for failing to provide a status report to the appellants.
The Court of Appeal, having reappraised the evidence, found that IPOA had performed its functions under the Independent Policing Oversight Authority Act, including investigating the killing and forwarding the inquiry file to the DPP. However, IPOA failed in its statutory duty to give the 1st appellant information relating to the investigations. The Supreme Court, sitting as a second appellate court, agreed with these factual findings and conclusions.
Whether this Court can compel the 3rd respondent (DPP) to prosecute the police officers responsible for the fatal shooting.
The Supreme Court held that it cannot compel or direct the DPP to institute criminal proceedings, as the DPP's prosecutorial independence under Article 157(10) is unequivocal.
The Court reasoned that Article 157(10) provides that the DPP shall not be under the direction or control of any person or authority. Article 157(11) does not create an exception to this insulation; it merely guides the exercise of the power. The High Court can only intervene under Articles 23 and 165(3)(d)(ii) if the DPP acts contrary to Article 157(11). Otherwise, the insulation remains intact, and no court, including the Supreme Court, can direct the DPP to prosecute.
Whether this Court should interfere with the trial court's award of Kshs 10,000,000 in general damages.
The Supreme Court declined to interfere with the award, finding no grounds to justify enhancement.
The Court noted that an award of general damages is discretionary and guided by factors such as the nature and impact of the breach. The Court of Appeal had correctly applied the principle that it could not interfere unless the trial court considered irrelevant factors or ignored relevant ones, or the award was inordinately low. The appellants did not place before the Supreme Court any facts indicating that the trial court was not guided by these principles. Each case is determined on its own merits, and the higher awards in other cases do not automatically warrant enhancement here.
Legal principles established
#- The DPP’s prosecutorial independence under Article 157(10) is absolute; no court can compel the DPP to institute criminal proceedings.
- To prove torture, cruel, inhuman, or degrading treatment, a claimant must show the victim was alive and under the tormentor’s custody, control, or influence.
- An appellate court will not disturb a trial court’s damages award unless it ignored relevant factors or the amount is inordinately low or high.
- IPOA may fulfil its investigative mandate but still breaches its duty if it fails to provide a status report to the complainant.
- The High Court can only intervene in DPP decisions if the DPP acts contrary to Article 157(11); otherwise, the DPP’s insulation remains intact.
Court orders
#- 1.The Appeal dated 11th September 2025 and filed on 12th September 2025 is hereby dismissed.
- 2.Each Party shall bear its own Costs.
- 3.The sum of Kshs. 6,000/= deposited as security be refunded to the appellants.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. E802 of 2024
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Enhancement of damages beyond Kshs 10,000,000
The appellants have not placed before us, any set of facts indicating that, the trial court was not guided by the foregoing principles in arriving at the impugned award.
Order compelling the 3rd respondent to prosecute the police officers
The constitutional insulation of the Director of Public Prosecutions, against control or direction in the exercise of his/her powers in terms of when and whether to commence criminal proceedings, is unequivocal.
Declaration that the deceased was subjected to torture, cruel, inhuman and degrading treatment under Article 29
No evidence was produced that death was not instantaneous and the deceased was exposed to pain and suffering before succumbing.
Costs
Each Party shall bear its own Costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Appeal dated 11th September 2025 and filed on 12th September 2025 is hereby dismissed.
Each Party shall bear its own Costs.
The answer to the issue before us is therefore that, this Court cannot compel or direct the 3rd respondent to institute criminal proceedings against the police officers responsible for the fatal shooting of the deceased.
To subject someone to torture, inhuman, cruel, or degrading treatment, ordinarily presupposes that the victim, is alive and under the custody, control, or influence of his/her tormentor.
We note that the appellants have not placed before us, any set of facts indicating that, the trial court was not guided by the foregoing principles in arriving at the impugned award.
Key timeline
#Practical implications
#DPP’s shield is near total
When challenging a DPP decision not to prosecute, focus on Article 157(11) grounds. The Court made clear that no court—including the Supreme Court—can direct the DPP to charge. Your only route is judicial review if the DPP acted contrary to laid-down principles, not a general demand for prosecution.
Know your investigative rights
Businesses that are victims of crime by state agents cannot force the DPP to prosecute. However, if an oversight body like IPOA investigates, they have a statutory duty to keep you informed. Ensure you request status reports and, if none come, you may have a legal basis to compel compliance even if the underlying prosecution is off the table.
Proving state torture is hard
If you or a family member suffers harm in state custody, you need medical or scientific evidence that the victim was alive and conscious during the mistreatment. A fatal shooting alone—without proof of extended suffering—won’t sustain a torture claim under Article 29. Document injuries and seek immediate medical reports to build your case.
Frequently asked questions
#Can the DPP be forced to prosecute someone in Kenya?+
No. The Supreme Court confirmed the DPP’s independence under Article 157(10) means no court or person can compel the DPP to bring charges. Even if evidence seems strong, the DPP decides alone, subject only to judicial review if they act improperly.
What constitutes torture under Kenyan law?+
Torture under Article 29 of the Constitution requires proof that the victim was alive and under the tormentor’s custody or control, and suffered severe pain or suffering. Instantaneous death during a police shooting does not meet this standard unless there is evidence of prolonged pain before death.
Can the Supreme Court increase a damages award in Kenya?+
Only in narrow circumstances. The Court will not interfere unless the trial court ignored relevant factors or the award is so high or low that it is clearly wrong. The family in this case received Kshs 10,000,000, and the Supreme Court saw no reason to raise it.
What is IPOA’s role after a police killing in Kenya?+
IPOA investigates police shootings and sends its file to the DPP. The Court ruled that IPOA must also give the victim’s family a status report. If IPOA fails to do so, the family can challenge that failure even if IPOA carried out its primary investigative mandate.
Cite this brief
#Cite this brief
Caselaw, "Siddique w/o Arshad Sharif & 2 others v Attorney General & 4 others", Case Analysis (2026). Petition E042 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/54/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.