or RECEIVE REPUBLIC OF KENYA = 2? AUG By IN THE HIGH COURT OF KENYA PNAIROBL: Tees <6 CONSTITUTIONAL PETITION NO.338 OF 2009 IN THE MATTER OF SECTION 84(1) OF CONSTITUTION OF KENYA (NOW REPEALED) IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER THE CONSTITUTION OF KENYA TO WIT CONTRARY TO SECTION 70, 72(1)(e), 74, 76. 77, 78, 79, AND 82 OF THE CONSTITUTION. BETWEEN KAMILYA MOHAMED! TUWENI AL KINDY... PETITIONER _ VERSUS THE COMMISSIONER OF ‘POLICE. es RESPONDENT ATTORNEY GENERAL ... RESPONDENT REPLYING AFFIDAVIT _ | Anthony L. Sunguti, a resident of Nairobi and ost office box No. 19485-00202 in the republic of Kenya do make oath and State as follows. 1. THAT | am Anthony L. sunguti, Force No. 231240 (ASP) attached to the “Antis terrorism Police Unit ( hereafter referred to as’ ATPU ) with instructions and. authority thus competent to swear this affidavit.2. THAT | have read and understood the constitutional petition filed on the 11" day of June, 2008 together with the supporting affidavit of Kamilya _ Mohammedi Tuweni al Kindy and the documents annexed thereto and wish. to respond as hereunder. 3. THAT in response to paragraph 1, 2, 3, 4, and § of the petitioner's Supporting affidavit, | wish to state that the respondents are strangers to the description of petitioner and the alleged nationals of United Arab Emirates and state that the police have no records of such persons in its custody as alleged by the petitioner, 4. THAT in response to allegations and disposition contained at paragraph 6. and 7 of the petitioner's supporting affidavit, | wish to state that the #foresaid allegations and dispositions have apparent contradictions ‘on the face of the record as enumerated hereunder: * That the petitioner states at Paragraph 6 that she travelled from. Dubai, UAE on the 7” of January, 2007 but does not disclose the date of arrival in Dar es Salaam, Tanzania. : E * That at paragraph 6 the petitioner again disposes and refer to an entry Visa which she obtained at Jomo Kenyatta International Airport in Nairobi on 9" January, 2007, % That at paragraph 7 the petitioner states that on the 9 of January, 2007 she travelled to Kenya together with the two Omant ‘businessmen and their Kenyan host, CEMENN 2010 travelicd by car from Dar es Salaam to Malindi. “There is no stamp showing the date of departure from UAE. - 5. In-response to allegations and contestations contained at paragraph 6, 7, 8, 9,10, 11, 12, 13, 14, 15, 16, and 17 of the petitioner's supporting affidavit, | wish to state that the petitioner and the two Omani businessmen in the ame Of A 271 CRD or 3 Kenyan in the nameOf SEAMEN and reiterate the contents of paragraph 3 herein above. 6. THAT in response to allegations and dispositions at paragraphs 18, 19, 20 and 21 of the petitioner's affidavit, | wish to state that the aforesaid matter falls within the domain of the Department of Immigration and.| am not able to respond to the same. 7. THAT in further respond to the above statement, | wish to deny that the petitioner was in the custody or detention of the Kenya Police/ATPU on the material dates and places as alleged. 8. THAT in response to paragraph 22, 23, 24,25 and 26 of the petitioner's Supporting affidavit, | wish to reiterate the contents of paragraph 3 hereinabove 'and state that the allegations cannot be attributed to the ATPUL 9, THAT | wish to state that the respondents are strangers to the contents of Paragraph 26 ~ 37 of the petitioner's supporting affidavit since they are alleged to have been outside the territorial jurisdiction of the Kenyan Police. 10.The respondents deny the contents of paragraph 38, 39, 40, 41, 42, and 43 Of the petitioner’s affidavit in so far as they relate to the psychological health of the petitioner and state that the aforesaid health issues can be attributed to the: foregoing. A1.In response to the facts and issues raised in the body of the petition and in particular response to paragraphs 3 — 6 of the main petition, am advised by the state counsel, on record for the respondents, advice which | verily believe to be true, that all persons are entitled to protection of Kenyan law irrespective of nationality provided that they are within the Kenyan borders 3legally and comply with Kenyan laws and regulations and are not a threat to the security of the country. 12.In response to the pleadings contained at paragraphs 7 ~8 of the main petition, the respondents reiterate the contents of this affidavit in that the petitioner was never arbitrarily arrested or otherwise illegally detained by the Anti-terrorism Police and further states that there is no record of the alleged arrest in our custody... 13.The respondents deny the contents of paragraphs 9, 10, 11, and 12of the petitioner’s pleadings in the petition and specifically deny that she was held in police custody anywhere in Kenya without due process, discriminated and. treated with prejudice in comparison with her alleged business colleagues or held withaut justifiable cause or subjected to degrading and inhuman treatment in. Kenya and further state that the respondents have no knowledge of the petitioner's detention in Somalia or Ethiopia and thus ‘not competent to respond to the aforesaid allegations. 14. THAT in response to allegations at paragraph 13 and 14 of the pleadings in the body of the petition — Kenya violating the petitioner's rights under the principle of non-refoulment and the doctrine of legitimate expectation- | have further been advised by the state counsel on record for the respondents, advice which [believe to be true, that under international law and the alleged violations, the petitioner has never been a refugee in Kenya to be afforded special protection under the aforesaid principle and if that be the case, which is vehemently denied, | am further advised by the aforesaid state counsel, advice which | verily believe to be true, that her claim should be directed to the Immigration Department and the ministry responsible for foreign affairs, :