Nairobi, Kenya – Kenya’s High Court has criticised the authorities’ response to Twaha Mwaipaya’s disappearance, saying a denial that they held the Tanzanian activist did not answer questions about the investigation or allegations that he might have been unlawfully returned to Tanzania.
Mwaipaya was not produced before Justice Alexander Muteti at the Milimani Law Courts on November 2, 2026, despite an earlier order requiring authorities to bring him to court. State lawyers denied that the respondents held him and said investigations were continuing.
The hearing ended with renewed pressure on Kenya’s police leadership. Speaking outside court, Senior Counsel Martha Karua said the judge had ordered Inspector General of Police Douglas Kanja to appear personally today, November 3, to explain Mwaipaya’s whereabouts.
The proceedings centred on whether the state had adequately answered the urgent application brought by human-rights organisation Vocal Africa after Mwaipaya’s reported abduction in Kamulu on October 25.
“The court notes that the subject has been missing since 25th of October 2026, and in all fairness the respondents by now should have filed a substantive response detailing the steps taken in the investigation into his whereabouts,” Justice Muteti said.
He rejected the explanation that service of the order on Friday, October 30, had left insufficient time to respond. The court had set a November 2 filing deadline of 9 a.m. and an appearance at 11 a.m. specifically to allow time for documents to be prepared, he said.
Custody disputed
The respondents had filed legal grounds opposing the habeas corpus application but had not yet submitted an affidavit setting out their factual response. State counsel asked for more time to do so.
Their argument was that the applicants had not established that Mwaipaya was in the custody or control of the respondents or another state agency. Allegations involving masked people in an unmarked vehicle, they maintained, did not prove police involvement.
They also argued that habeas corpus, a procedure for challenging detention and requiring a person to be brought before a court, could not substitute for an investigation into a missing person’s whereabouts when state custody had not been established.
Justice Muteti said their response was insufficient because it addressed custody without answering the allegation that state agents might have removed Mwaipaya from Kenya. He also questioned the absence of a substantive investigation report more than seven days after the disappearance was reported.
“The applicants have made very serious allegations that the subject may have been unlawfully removed from the country by state agents,” he said. “The respondents have not answered that allegation either through their grounds of opposition or orally in court.”
Those remarks did not establish that Mwaipaya had been returned to Tanzania or identify who took him. They required the authorities to address an allegation that remained unresolved.
Fear of return
The court heard that a fellow Tanzanian who was with Mwaipaya had described both men in a witness statement as political asylum seekers living in Kenya since October 2025 because of their involvement in CHADEMA politics.
According to the account recounted by the judge, masked men stopped their ride-hailing vehicle and seized Mwaipaya. The witness said he could not identify the abductors, and a missing-person report was made at Ruai Police Station that day.
Lawyer Abner Mango told the court that sources indicated Mwaipaya risked being returned to the country from which he was seeking protection. He urged personal appearances by Kanja and the head of the Directorate of Criminal Investigations rather than representation alone.
READ MORE: Mwaipaya Disappearance: East African Legal Bodies Press Kenya and Tanzania as Answers Remain Elusive
The concern raised the principle of non-refoulement, protection against being sent back to persecution or serious danger. Kenya’s Refugees Act provides such protection, including for asylum seekers.
Karua challenged the pace of the investigation, arguing that police had known of the disappearance since October 25, not merely since receiving the court order.
“They can no longer have the luxury to come to court and say we were only served on Friday,” she said.
She also questioned reliance on correspondence with Safaricom, arguing that security agencies could obtain mobile-phone information quickly when they treated a case as urgent.
Mwaipaya, a former national mobilisation coordinator in CHADEMA’s youth wing, BAVICHA, has campaigned for constitutional change and police accountability. His disappearance has drawn demands from regional legal and rights organisations for answers and protection against unlawful removal.
Outside court, Karua said the immediate priority remained establishing his safety and location.
“We need to know tomorrow [Tuesday] whether Twaha is safe and his whereabouts,” she said, “and we need to be assured that everybody on Kenyan soil is safe the way the Constitution of Kenya envisages.”
