What you need to know:
Many who have been arrested without committing an offence fear suing the state for compensation.
Experts says cases mistaken identity are not a strange phenomenon, and that the only thing that should cause concern is a huge increase in such cases.
When six attackers stormed 14 Riverside Drive on January 14, they first detonated explosives which sent debris flying through windows in some of the buildings in the complex.
At Grosvenor, one of the buildings, Bryson Mwamburi and his colleagues looked out the window after hearing gunshots. The Jomo Kenyatta University of Agriculture and Technology (JKUAT) student opted to run upstairs, as the attackers shot at people outside.
On the seventh floor, he hid on a balcony and managed to tweet about the attack.
“Guys, terrorists are shooting Riverside Drive. Call the police and pray for me,” he posted on his Twitter account.
Bryson declined an interview request from the Saturday Nation but had earlier told the BBC what he went through as police initially thought that the JKUAT student was working with the Riverside terrorists.
While mistaken identity is nothing new to Kenyans, many have paid heavily for being in the wrong place at the wrong time, with some winding up in prison only to be released later after the discovery that they actually are innocent.
While still on the balcony, Bryson noticed glass suddenly shattering behind him. Bryson looked up and saw someone on another building balcony who shot at him again — but missed.
He finally used a fire escape to get out of the building, and climbed up a fence in the back of the complex where police officers were aiding others. After crawling to the officers, one of them handcuffed Bryson and bundled him into a police vehicle.
Nearly 40 minutes later, the JKUAT student was at Kileleshwa Police Station where he spent the night.
“At some point, I think due to anxiety, I was going into shock. So I tried to flag some ambulance people, I told the police I’m going into shock. They ask “What is shock?” I was taken to the station, no bookings were made, no occurrence book number recorded, no statements were taken,” Bryson said in the BBC interview, still looking traumatised by the ordeal.
On Friday, the High Court in Nyeri released Abdul Kibiringi, James Mwai Mwangi and Habiba Gedi Hunshur who have been in police custody all week.
The court on Monday allowed the Anti-Terror police to hold the suspects for five days as detectives investigated allegations that the three were had been in communication with the attackers that struck 14 Riverside Drive on January 15.
Police initially suspected the three may have links to other members of terrorist group Al Shabaab. But yesterday officers told the court that after investigations, none of the individuals could be linked to terror.
There were mixed reactions on social media over their release, pointing to one of the most undesirable effects of mistaken identity arrests.
After terrorists struck the Westgate Mall in 2014, Paul Omulokoli and a few of his friends opted to register as Red Cross volunteers at Visa Oshwal, which is near the Westgate Mall.
Coincidentally, Paul is also an RPF member.
During a shift change, some volunteers noticed Paul was not wearing a Red Cross vest and reported him to the police. Minutes after a short interrogation, the Anti-Terror Police Unit officers whisked Paul to Parklands police station.
The engineer would spend the next four days in a cell before being released.
Much like Bryson, hundreds of people who knew Paul took to social media demanding his release.
Paul also declined an interview request, arguing that the ordeal was still traumatising more than five years later.
Still at 14 Riverside, lawyer Memba Muriuki also found himself in custody shortly after the attack.
On hearing the gunshots, the lawyer brandished his gun in an attempt to help the early responders from neighbouring police stations. But he was instead arrested after officers thought that he was with the attackers.
The lawyer was assaulted at the scene and later in Kileleshwa.
Memba was eventually released when officers confirmed he is a licensed gun owner.
The lawyer also declined a request for an interview. A video uploaded on YouTube by Africa Uncensored depicting Memba’s assault was later pulled down upon the lawyer’s request.
Mistaken identity is not unique to terrorist attacks.
The future looked bright for Harrison Murigi in 2004. He had a promising green grocer business, was just two years into marriage and had a one-year-old daughter.
But he will never forget December 16, the same year. Harrison was on his way to Nyeri for a funeral, he made a quick stop at Kibirigwi where a business meeting was to take place.
After alighting, Harrison was on phone with his friend when a speeding vehicle knocked him down. Suspected robbers were in the vehicle that was being pursued by police.
Harrison was arrested on suspicion of being the robbers’ getaway driver.
After being sentenced to death for robbery with violence in 2006, he spent the next 10 years appealing the decision. On October 4, 2016 he was finally exonerated and set free.
Reunited with his wife Susan Wangui who attended every court session over the years, it appeared that Harrison would get a semblance of the life he dreamed of.
But one year later, his Susan died during child birth. The twins she was delivering however made it, and Harrison is raising them.
Harrison now says he accepted what had happened, and has moved on.
“When I walked out of prison, I decided I was never going to look back. I just decided to move on and raise my three children. The first born is now in secondary school. I do casual jobs to get enough money to take care of my family,” Harrison told the Saturday Nation.
On the evening of August 3, 2018 critically acclaimed author Yvonne Adhiambo Owuor was in Lavington looking to buy baobab oil.
Shortly after stepping out of Healthy U store in the area, she noticed people running around and asked a man standing next to her what was happening.
Rather than answer her, the man started to wrestle her. Thinking she was being robbed, Yvonne decided to fight back. The man took Yvonne’s mobile phone and assaulted her, injuring her arm in the process.
Before long, she had been arrested for hawking in the Lavington area. The man wrestling her turned out to be a City Hall Inspectorate officer and the commotion was a swoop on hawkers.
She was charged at the City Court on August 6, causing massive uproar from Kenyans on social media. This escalated when photos of a tired, distraught-looking Yvonne with a sling holding her left arm was posted on social media.
Igor Mejaski, owner of Blue Lagoon Water Sports in Mombasa, also found himself a guest of the State for 48 hours in March, 2009 when police officers confused him for Yugoslavian war criminal Ratko Mladic. The businessman was accosted by nearly 20 armed men who searched his office before detaining him.
He was grilled by then provincial police boss King’ori Mwangi and provincial criminal investigations officer Nyagah Reche.
It was only after Interpol confirmed he was not the man being searched for that Igor was released from the Mombasa Port Police Station.
Experts advise that those arrested mistakenly should be compensated.
Nick Ouma, a partner at Odhiambo Oronga & Company Advocates, holds that many people who are exonerated opt out of pursuing damages from the State for malicious prosecution because the process of getting compensation from government is difficult, time consuming and often frustrating.
He adds that in cases where charges are withdrawn by the State before a final determination, the Office of the Director of Public Prosecutions will mostly drop the case under section 87(a) of the Criminal Procedure Code, rather than 87(b).
Under section 87(a), if the DPP’s office withdraws charges against an accused person before he or she has been called upon to state their defence, then the release is not unconditional in that a fresh arrest and prosecution process can be started over the same offence.
But under 87(b), if the charges are withdrawn after an accused person has been called upon to state his or her defence, then the matter rests for good.
“Most people don’t know (that you can seek damages). But it is a rigorous process. The process of getting money from government is usually difficult. But most people think releasing you is a favour, that they (the courts and authorities) have let you off the hook,” Mr Ouma said.
Israeli trained security analyst Richard Tuta says mistaken identity is not a strange phenomenon, and that the only thing that should cause concern is a huge increase in such cases.
Mr Tuta holds that security officers are trained to be pessimistic when fighting crime, which will inevitably lead to some isolated cases of mistaken identity.
But even with that, he adds that security officers must have spotted something with a certain individual for them to arrest and detain him or her.
“Security officers have very little time to make a judgment on action to take in such situations. Suppose they let you go, then it turns out one year later that they released the criminal they were looking for. As a society we must know that fighting crime and terror always comes with collateral damage. If they let you go, and it turns out you’re a criminal, the damage will be more severe than if it turns out to be the reverse,” Mr Tuta said.
“But that is why you have the leeway to seek damages in court if the arrest was malicious or wrongful. So that you can be restored to where you were. That is where the court comes in, to supplement that which you feel has been taken from you,” Mr Tuta added.
The analyst holds that security officers consider several factors before making the call to arrest or let someone go. Behaviour, movement and appearance (dressing) are some of the factors he lists.
“Everybody coming out of a terrorist attack scene for instance is a victim, but is also a suspect. Nobody will ever come out and say “I am a terrorist” so the security officers have to be very careful,” Mr Tuta said.
Additional reporting by Joseph Wangui