No compensation for Malindi family after police shot kin in raid
Courts faced with the custody question are mindful of the constitutional and statutory imperative that the best interests of a child are paramount.
What you need to know:
- Mr Rashid Sultan Timamy was killed on June 28, 2016.
- The case, in which his family had sued ended in victory for the State after the High Court in Mombasa ruled that the businessman's killing was justified after he shot and injured one officer during an operation to arrest him.
The family of Rashid Sultan Timamy, a well-known contractor in Malindi, could have received millions of shillings in damages if it were not for the suspected terrorists he was harbouring in his compound.
His widow, Munira Mohamed, his brother Nassir Mbarak, and his nephew Sultan Ali had sought compensation for his killing that occurred seven years ago.
However, the case ended in victory for the State after the High Court in Mombasa ruled that the businessman's killing was justified after he shot and injured one officer during an operation to arrest him.
Mr Timamy was killed on June 28, 2016.
He was at the time involved in the house construction business under the name Texlive Construction Co. Ltd.
Evidence presented by his widow indicates that at around 8:45 pm, a group of armed individuals entered the deceased's residence. The businessman was present and working in his home office.
“In an attempt to defend himself, and the members of his household, the deceased rushed to retrieve his duly licensed firearm. In the process, he was shot dead by the people who I later came to learn were police officers,” Ms Mohamed said.
The officers proceeded to search the house until 11 pm before taking the woman to the police station for further interrogation.
"The deceased body was later released to me for burial,” he said.
The family then filed a lawsuit against the state, seeking various reliefs, including a declaration that Mr Timamy's right to life, inherent dignity, and equality before the law was violated by agents of the Inspector General of Police (IG).
“A declaratory order should be issued that Mr Timamy's right to freedom and security, as guaranteed in the constitution, has been violated as a result of the actions by the IG's agents,” they stated.
The petitioners also sought a declaration that Mr Timamy's right to privacy and equal protection of the law, as well as that of his family, had been violated.
“A declaratory order should be issued that Mr Timamy and his family are entitled to the payment of damages and compensation for the violations and contraventions of their fundamental rights and freedoms under the Constitution,” they insisted.
Mr Mbarak defended his late brother, describing him as a devoted family man and a prosperous businessman who focused on his construction ventures.
He further mentioned that his late brother possessed a valid firearm license, which he had obtained in 2005.
"The police acknowledged in a press release that they were responsible for the death of my brother, thus their actions violated the constitutional rights of the deceased and his family,” Mr Mbarak stated.
However, it is the testimony and evidence presented by the police that illuminated what truly occurred on the night Mr Timamy was fatally shot. Surprisingly, the police did not deny shooting the deceased, as they typically do, but explained their actions.
Chief Inspector Stanley Gitiobu of Malindi Sub-County Criminal Investigation Headquarters stated that the decision to raid the deceased's house was based on intelligence indicating the presence of terrorist operatives in a house within Malindi Town.
The Anti-Terrorism Police Unit (ATPU) officers then formed a multi-agency security team for a sting operation at the specific house in the Sea Breeze Area.
“At about 10.30 pm, the officers entered into the deceased’s house. The deceased resisted the police officers by shooting at them using his shotgun. As a result, an exchange of fire ensued in which the deceased was fatally shot,” said Mr Gitiobu.
The deceased house was then searched, and Hamud Majid Hamud, who was armed with a Taurus revolver, was arrested. Mr Hamud fired at the officers, injuring Police Constable Joseph Waititu Wangeci.
Another suspect, Abdullaziz Ali, was also arrested at the scene. A third suspect, Imran Hassan, was later apprehended.
"Investigations were thereafter conducted, after which the suspects were arraigned before court," said Mr Gitiobu.
These three suspects were charged with terrorism-related offences.
Chief Inspector Benard Kilonzo, who worked on the case with Mr Gitiobu, clarified that the deceased was fatally shot after firing the first shot at the police officers, prompting the officers to respond in self-defence.
“Our investigations revealed that the deceased and others were involved in terrorist activities, thus putting the whole country in jeopardy,” said Mr Kilonzo.
He reported that had the deceased cooperated with the police officers, the exchange of fire would have been unnecessary.
The death certificate produced in court shows that the 41-year-old died of cardiopulmonary arrest.
Mombasa Resident Judge Olga Sewe who handled this case noted that the widow demonstrated that her husband was shot dead by the police but also conceded that the deceased and his nephew confronted the police officers with guns.
Mombasa Resident Judge Olga Sewe, who presided over the case, acknowledged that the widow proved her husband was shot dead by the police.
The court also noted that the widow admitted that the deceased and his nephew confronted the police officers with guns before he was shot.
However, the judge ruled that the evidence presented showed that the situation was delicate and that the use of force was justified under Section 49 of the National Police Service Act.
Justice Sewe ruled that the allegations of the deceased's rights being violated and the police acting unlawfully were not proven.
As a result, the judge dismissed the case without any compensation being awarded to the widow and her children.
