Gilbert Masengeli's last chance to escape prison

Gilbert Masengeli salutyes after he toak oath of office as the Deputy Inspector General of police in charge of Administration policeat Jogoo house Nairobi on July 29, 2024. [Collins Kweyu, Standard]

With the clock ticking, acting Inspector General of Police Gilbert Masengeli now has one last chance to avoid serving a six-month prison sentence.

He must appear before the High Court by close of business on Thursday, September 19, 2024, to explain allegations surrounding the abduction of three people in Kitengela, as ordered by Justice Lawrence Mugambi.

With just hours before the seven days’ deadline to comply with the order, all eyes are on Masengeli. 

His decision to comply with Justice Mugambi’s order could shape not only his fate but also the integrity of the police force he leads.

Masengeli's predicament intensified on Wednesday after he failed to secure a stay order at the Court of Appeal, which would have suspended his prison sentence pending hearing and determination of his appeal.

Justices Aggrey Muchelule, Gatembu Kairu, and Weldon Korir rejected the request from Masengeli's legal team, led by Cecil Miller, Steve Ogolla, and State counsel Emmanuel Bitta, to halt the sentence pending the appeal temporarily.

The judges however expedited the legal proceedings, scheduling Masengeli’s appeal for next week, to be heard by a bench appointed by the president of the Court of Appeal.

In addition, they granted the Law Society of Kenya (LSK) two days to file their responses, emphasizing the urgency and significance of the case.

Masengeli was found guilty of contempt of court by Justice Lawrence Mugambi last Friday, leading to his six-month sentence.

The judge had ordered that he reports to the commissioner general of prisons but also provided an alternative: to appear in person before the court to address the pressing issues he had been avoiding.

Justice Mugambi emphasized that Masengeli had a seven-day grace period to comply with the order and avoid imprisonment, a window that is rapidly closing.

In a striking rebuke, Justice Mugambi warned, “The acting Inspector General Masengeli can redeem himself by availing himself before this court in person to answer to the issues which he has been avoiding. Failure to do so, the sentence will take effect on Friday, September 2024.”

His conviction and sentencing came after Masengeli had repeatedly snubbed court summons, having missed seven appearances with various justifications.

On one occasion, he cited attendance at a workshop, claiming he was preoccupied with pressing security issues in Mombasa and Wajir.

On another, he requested an additional chance to appear the following Monday, only to miss that date as well.

Instead, Masengeli sent Deputy IG Eliud Lagat to represent him, urging the court to consider his "busy schedule."

The judge’s frustration was palpable as he remarked that Masengeli had ‘casually treated every possible opportunity accorded to him by this court.’

"This pattern of avoidance not only strained the court's patience but also raised serious questions about Masengeli's accountability and commitment to upholding the law.

Following the sentence Masengeli's legal team petitioned the Court of Appeal arguing that Justice Mugambi had condemned him without properly hearing his side of the story.

In his appeal, he seeks to suspend his conviction and sentencing, saying he was condemned unheard.

Masengeli said a decision was made by the courts in the absence of any formal application for contempt.

He also said the judge "made a mistake" by holding that he could not send representatives to explain why the order requiring the production of the missing persons had not been complied with.

Miller contends that the judge's summons did not require his personal attendance, citing Order 9 of the civil procedure rules (2010) which provides that any appearance in court may be done by his advocates or recognised agents.

At the same time, Masengeli faulted the judge for disregarding his replying affidavit to the case, which he says provided evidence that the missing Kenyans were not in police custody.

As the deadline looms, the pressure mounts for Masengeli.

His reputation and leadership role hangs in the balance as he navigates the complexities of the legal system.

LSK lawyer Nelson Havi said that the potential consequences of failing to appear before the court could be dire, not only resulting in immediate incarceration but also damaging his credibility within the police force and the public sphere.

Havi said that the three individuals whose disappearances have brought Masengeli under scrutiny remain a haunting reminder of the stakes involved.

"Families and communities are desperate for answers, and the court has made it clear that accountability must be prioritized. Masengeli’s ability to explain the circumstances surrounding their abduction is critical, and his absence would only serve to exacerbate public outrage and mistrust," Havi says.

With just hours left before the deadline, all eyes are on Masengeli.

His decision to comply with the court’s directive could determine not only his freedom but also the future of his career.