Petition filed seeking to declare Murkomen unfit for office over ‘shoot to kill’ order

Civil society organisations led by Katiba Institute have filed a petition at the Milimani High Court seeking to have Interior Cabinet Secretary Kipchumba Murkomen declared unfit to hold public office over remarks he made regarding the use of lethal force by police during the ongoing anti-government protests.

In the case, Katiba Institute alongside the Kenya Human Rights Commission (KHRC) and the Independent Medico-Legal Unit accuse Murkomen of overstepping his mandate by commenting on policing matters and making statements that allegedly incite unlawful violence, misrepresent the law, and violate the Constitution.

The petition stems from a public address Murkomen made on June 26, where he cited Schedule 6(1)(b) of the National Police Service Act—including subsections (c), (d), and (e)—to justify police use of deadly force to protect property, prevent escapes from custody, or stop others from aiding such escapes. He claimed the law on the use of deadly force was "very clear."

However, the petition notes that those specific legal provisions were declared unconstitutional by the High Court in 2022 in Katiba Institute & Another v Attorney-General & Another* [2022] KEHC 17072 (KLR), rendering them void.

The CS is accused of failing to disclose this fact, misleading the public and law enforcement.

“CS Murkomen has explicitly called on the police to kill Kenyans, falsely claimed that their conduct would be justified under the law and the Constitution, and asserted that the government would defend their unlawful actions,” reads part of the court filings.

The petitioners argue that Murkomen’s statements amount to incitement under Article 33(2) of the Constitution and violate Articles 10 and 245(2)(b), as well as the Code of Conduct and Ethics for public officers.

They contend that his actions breach the constitutional obligation to uphold the rule of law, serve the public, and preserve the dignity of state office.

The petitioners are hence asking the court to issue a declaration that Murkomen is unfit to serve in any public office, especially one connected to national security or law enforcement.

They also want him compelled to publicly retract his remarks—via a televised statement, a press briefing at Harambee House, and a paid newspaper notice—all at his personal expense.

They say that the retraction must specifically reference the High Court ruling in HCCHRPet. 379/2017, which outlines the lawful limits on the use of police force.

Additionally, the petition seeks orders directing the Independent Policing Oversight Authority (IPOA) to submit a list of all individuals killed or seriously injured by police from June 26 up to the date of the CS's retraction.

The petitioners are further seeking compensation for victims of police brutality and reimbursement of legal costs, stating the petition is brought in the public interest.

Murkomen has been facing backlash over the directive, which he made a day after Gen Z protests led to mayhem and destruction across the country.

The Law Society of Kenya and leaders countrywide have slammed CS Murkomen over his "shoot on sight" order to police against civilians who attack police stations, terming the statement reckless, warning it could fuel more extrajudicial killings.

Murkomen has since clarified that police are well aware of their limits in the use of force.

A Nairobi lawyer also petitioned last month for the removal of Murkomen and Deputy President Kithure Kindiki from the Roll of Advocates over their alleged role in state violence during protests.

The motion, filed by lawyer Kepha Ojijo and received on Monday by the LSK, accuses the two of gross misconduct and violations of the Advocates’ Code of Conduct stemming from their tenure as Cabinet Secretaries in charge of Interior and National Administration.

Several Members of Parliament allied to the opposition have also revealed plans to initiate an impeachment motion against Murkomen, citing his controversial "shoot to kill" directive as grounds for removal from office.