https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8787

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT HOMA BAY** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E002 OF 2025** **SAMUEL OCHIENG AGARO**............................................................................**PETITIONER** **VERSUS** **COUNTY GOVERNMENT OF HOMA BAY**...............................................**1ST RESPONDENT** **HOMA BAY COUNTY** **INSPECTORATE SERVICES DEPARTMENT**...............................................**2ND RESPONDENT** **COUNTY REVENUE OFFICE HOMA BAY**................................................**3RD RESPONDENT** **JUDGEMENT** **Background Petition** 1. The Petitioner, Samuel Ochieng Agaro, describes himself in the petition as a male adult of sound mind and a small-scale trader carrying on business within Kendu Bay township, Rachuonyo North Sub-County, within Homa Bay County. 2. On the other hand, the 1st Respondent is described as a body corporate and a devolved organ of the State established pursuant to Article 176 of the Constitution of Kenya, 2010. The 2nd Respondent, the Homa Bay County Inspectorate Services Department, is sued as an administrative unit of the 1st Respondent charged with the mandate of enforcing county bye-laws, licensing compliance, and security within the county. The 3rd Respondent, the County Revenue Office, Homa Bay County, is also sued as an administrative unit of the 1st Respondent responsible for local revenue collection and business permitting. 3. The dispute as pleased is said to have arisen from an enforcement action on 19th June 2024, during which the Petitioner was confronted by officers designated as county enforcement askaris acting under the authority of the Respondents. Following the alleged assault, battery, and illegal detention, the Petitioner filed this Constitutional Petition dated 12th September 2024, seeking declarations of rights violations and compensatory damages. **The Petition** 1. The Petitioner’s case is anchored upon the Petition dated 12th September 2024 and supported by the affidavit sworn by the Petitioner on the even date. The Petitioner’s factual grievance stems from the said incident on 19th June 2024. he asserts that at approximately 12:00 PM, while attending to his business, he was accosted by a group of uniformed Homa Bay County Government Inspectorate askaris. The askaris, who were operating from the Rachuonyo North sub-county offices, accused him of operating his kiosk without having acquired a single business permit. He asserts that this accusation was entirely false as he was lawfully paying his single business permit charges and taxes to the county, which is evidenced by the county transaction receipt annexed to his list of documents. 2. The Petitioner deposes that the county askaris did not permit him to explain himself or produce his payment records. Instead, they forcefully seized and abducted him from his kiosk, transporting him to their sub-county administrative offices located at Kamodi. Upon arrival at the Kamodi offices, the askaris locked him in a dark room and detained him from midday until approximately 5:00 PM without any legal authority, warrant, or justification. 3. During this period of illegal detention, the askaris pulled him into a corner and beat him ruthlessly using wooden batons. He alleges to have pleaded with the officers to understand the nature of his offense and offered to comply with any lawful directives, but his pleas were met with further violence. He alleges to have sustained severe multiple physical injuries, excruciating chest pains, deep bruises, and swollen limbs, alongside profound psychological trauma. The askaris finally released him at approximately 5:00 PM, warning him that his physical punishment was a consequence of his perceived stubbornness in operating without a single business permit. 4. Immediately upon his release, he reported the physical assault and arbitrary detention at the Kendu Bay Police Station, where the matter was recorded vide OB No. 28/19/06/2024. He was subsequently issued a P3 Form and went to Kendu Bay Sub-County Hospital for emergency medical treatment. Due to persistent physical complications, the Petitioner later sought specialized treatment from a senior medical officer in Kisii, who compiled a medical report detailing severe tissue scarring, localized trauma, and a long-term prognosis for recovery. 5. It is further deposed that although police investigations were completed and the Office of the Director of Public Prosecutions recommended that formal criminal charges be brought against the offending askaris, no criminal proceedings have been initiated because the local police have failed or refused to apprehend the suspects. The Petitioner asserts that this inaction has impeded his access to justice and left him with no alternative but to invoke the constitutional jurisdiction of this Court. 6. The Petitioner contends that the actions of the county askaris directly contravene his fundamental rights under the Constitution of Kenya, 2010. Specifically, he cites violations of Article 25(a) regarding the absolute freedom from torture and cruel, inhuman, or degrading treatment; Article 28 regarding the right to inherent human dignity; Article 29 on the right to freedom and security of the person; Article 39(1)(a) regarding the freedom of movement; and Articles 47, 48, 49, 50, and 51(1) concerning fair administrative action, access to justice, and the rights of arrested and detained persons. He also pleads violations of Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights, which are part of Kenyan law by virtue of Article 2(6) of the Constitution. 7. He contends that since the county askaris were on duty and acting within the course and scope of their employment, the Respondents are directly and vicariously liable for the unlawful arrest, physical battery, illegal detention, and torture. 8. The Petitioner prays for the following orders: 9. A declaration that the Petitioner's fundamental rights and freedoms guaranteed under Articles 25(a), 28, 29, 47, 48, 49, and 51(1) of the Constitution of Kenya were violated by the 1st and 2nd Respondents vicariously through the unlawful arrest, physical beating, assault, and subsequent detention, torture, and inhuman and degrading treatment caused by their employees. 10. A declaration that the Petitioner is entitled to payment of compensation by way of damages from the Respondents, jointly and severally, for the violation of his fundamental rights and freedoms. 11. An award of compensatory damages, quantified in his submissions at KShs 3,500,000/=. 12. An award of the costs of the Petition. **Response to the Petition** 1. The 1st, 2nd, and 3rd Respondents opposed the Petition by filing a joint Notice of Preliminary Objection dated 5th June 2025. The Respondents seek to have the Petition struck out in its entirety, asserting that it is incurably defective, incompetent, and an abuse of the court process. The grounds for objections are, THAT:- 2. The Petition fails to disclose a constitutional question capable of invoking the jurisdiction of this Honourable Court under Article 165(3)(b) of the Constitution. The grievances raised are properly redressable through statutory and common law procedures, not under the Constitution. 3. The Petition offends the well-settled principle that constitutional relief should not be sought where adequate alternative remedies exist under ordinary law or administrative procedures. 4. The Petitioner has not exhausted the available statutory, civil, or administrative remedies and has neither sought nor obtained exemption under Section 9(4) of the Fair Administrative Action Act, 2015. 5. The Petition fails to meet the threshold for constitutional pleadings as established in Anarita Karimi Njeru v Republic (1979) 1 KLR 154 as it lacks precision in identifying the specific constitutional rights violated, the manner of violation, and by whom. 6. The 2nd and 3rd Respondents are mere departments or units within the County Government of Homa Bay and lack independent legal personality or capacity to sue or be sued. 7. The Petition is premised on allegations against unidentified “county askaris” without naming or properly identifying any officers or their ranks or positions, making it impossible to attribute liability or establish a nexus with the Respondents. 8. The reliefs sought, including general damages and compensation, are remedies whose determination is highly fact-dependent and suited for trial through ordinary civil or criminal processes, not the summary jurisdiction of a constitutional petition. 9. Consequently, the Respondents pray that the Preliminary Objection be upheld and the entire Petition be struck out with costs. Alternatively, they pray that the 2nd and 3rd Respondents be struck out of the proceedings for want of legal capacity. 10. The petition was directed to be canvassed by way of written submissions, based on the petition and any responses filed thereto, and the parties have thus filed and exchanged the respective submissions. The submissions are based on the petition and the Notice of Preliminary objection as the only response to the petition. 11. It is to be remembered that by directions of the court given on the 3.6.2025, and reiterated on the 10.11.2025, the respondent was given the timelines within which to file and serve responses to the petition, if any. By filling a Notice of Preliminary Objection, without more, the respondent must be taken to have exercised his liberty of choice of a befitting opposition to the petition and that the Notice of Preliminary Objection id the only resistance to the petition. **Summary of the Petitioner’s Submissions** 1. The Petitioner’s written submissions in response to the Preliminary Objection and on the merits of the Petition argue that the Preliminary Objection lacks merit and should be dismissed. 2. The Petitioner submits that a preliminary objection must be based on a pure point of law. Citing the classic decision in ***Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd* [1969] EA 696**, the Petitioner argues that an objection cannot be raised if any fact has to be ascertained or if the court must exercise its judicial discretion. He contends that the Respondents' objection dwells on contested facts regarding the identity of the askaris and the occurrence of the assault, which are matters of proof through evidence and cannot be determined on a preliminary objection. 3. On the question of jurisdiction, the Petitioner argues that Article 165(3)(b) of the Constitution explicitly grants the High Court original jurisdiction to determine questions involving the interpretation of the Constitution and the enforcement of the Bill of Rights. He submits that any citizen who feels their fundamental rights have been infringed has an absolute right to approach the High Court directly, and that Article 165 clothes the court with the necessary authority to grant relief. 4. Regarding the joinder of the 2nd and 3rd Respondents, the Petitioner submits that these entities are the direct enforcement and administrative arms of the 1st Respondent. He argues that because their officers were directly involved in the alleged assault, battery, and illegal detention, their presence as parties is necessary to provide the Court with all relevant information. 5. On the merits of the Petition, the Petitioner argues that his arbitrary arrest, five-hour detention in a dark room, and severe physical beatings with batons constitute a clear violation of his rights under Article 25(a) (freedom from torture and cruel, inhuman, or degrading treatment) and Articles 28 and 29 of the Constitution. He submits that because he was lawfully paying his single business permit charges, the enforcement action was an arbitrary abuse of administrative power. He further argues that since the police have failed to arrest the suspects despite a formal report vide OB No. 28/19/06/2024, his right to access justice and a fair trial under Articles 48 and 50 has been compromised. 6. To support his claim for compensatory damages, the Petitioner argues that the state has a fundamental duty to protect its citizens from physical violence and abuse of power by its agents. He cites ***Florence Amunga Omukanda & Another vs Attorney General & 2 Others* [2016] eKLR** to establish that the state must be held accountable for human rights violations committed by public officers. 7. Regarding the quantum of damages, the Petitioner cites the case of ***Geoffrey Kibet Kemoi vs State & 2 Others* [2022] eKLR**, where the High Court awarded KShs. 1,500,000/= to a petitioner who suffered severe injuries and permanent disability due to torture while in state custody. Given the physical injuries, emotional distress, and prolonged recovery detailed in his medical reports, the Petitioner submits that an award of KShs. 3,500,000/= is fair, reasonable, and necessary to vindicate his rights and compensate him for his suffering. **Summary of the Respondent’s Submissions** 1. The Respondents’ written submissions, filed on 21st November 2025, argue that the High Court lacks jurisdiction to hear the Petition and that the suit is an abuse of the court process. The Respondents submit that jurisdiction is a threshold issue and the bedrock of any judicial inquiry. Citing the decision in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd* [1989] KLR 1**, the Respondents argue that without jurisdiction, a court has no power to take any further step in the proceedings and must down tools immediately. 2. The Respondents contend that the dispute does not raise any genuine constitutional question. They argue that the Petitioner’s claims of harassment, physical assault, and false imprisonment are ordinary civil torts that fall within private law. Citing ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others* [2014] KESC 1 (KLR)**, the Respondents argue that constitutional litigation is an extraordinary remedy and must not be used to bypass ordinary statutory, civil, or administrative dispute resolution procedures. 3. The Respondents argue that the Petitioner has failed to utilize any of the alternative dispute resolution mechanisms available to him. They note that he did not file any administrative complaint with the county administration, did not pursue a civil claim for common law damages, and failed to seek or obtain an exemption under Section 9(4) of the Fair Administrative Action Act, 2015. They submit that under Section 9(2) of the Act, this failure to exhaust alternative remedies is a statutory bar that deprives the Court of jurisdiction. 4. Furthermore, the Respondents argue that the Petition fails to satisfy the pleading standards of precision and specificity required under the *Anarita Karimi Njeru* doctrine. They contend that the Petitioner merely lists a catalogue of constitutional provisions without setting out the specific acts of violation or identifying the specific officers involved. They argue that because the alleged perpetrators are described as “unidentified askaris” there is no factual basis to establish an employment relationship, prove a chain of command, or attach vicarious liability to the County Government. 5. On the question of legal capacity, the Respondents submit that only natural or corporate bodies recognized by law can sue or be sued. They argue that the 2nd Respondent and the 3rd Respondent are mere administrative departments of the 1st Respondent. They argue that these units lack independent statutory recognition or corporate status, and any legal proceedings brought against them are incompetent *ab initio*. In conclusion, the Respondents aver that the Petition is an attempt to use constitutional litigation to claim general damages for an ordinary civil dispute. They pray that the Preliminary Objection be upheld and the Petition be struck out with costs. **Issues for Determination** 1. Having considered the Petition, the Supporting Affidavit, the Notice of Preliminary Objection, and the written submissions by both parties, the Court identifies the following five issues for determination: 2. Whether the Respondents’ Notice of Preliminary Objection is indeed a befitting arguments as such in line with the the established principles of law? 3. Whether the 2nd and 3rd Respondents are proper parties to this Petition? 4. Whether this Court is barred from determining the Petition by the doctrine of exhaustion of remedies or the principle of constitutional avoidance? 5. Whether the Petition is fatally defective for failing to meet the standards of precision under the *Anarita Karimi Njeru* doctrine? 6. Whether the Petitioner’s fundamental rights and freedoms were violated by the employees of the Respondents? and, 7. If (e) be answered in the affirmative, whether the Petitioner is entitled to the reliefs sought? 8. What orders should be made as to costs? **Analysis and Determination** **Whether the Respondents’ Notice of Preliminary Objection is sustainable under the established principles of law?** 1. The Petitioner challenges the validity of the Preliminary Objection, arguing that it relies on disputed facts rather than pure points of law. The nature and limits of a preliminary objection were defined in the locus classicus case of ***Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd* [1969] EA 696**. A preliminary objection consists of a pure point of law which, if argued as a preliminary point, may dispose of the entire suit. It must be argued on the clear assumption that all the facts pleaded by the opposite party are correct, and it cannot be raised if any fact has to be investigated or if the court is required to exercise judicial discretion. 2. In the present case, several grounds raised in the Respondents’ Preliminary Objection including claims that the county askaris are unidentified under Ground 6, that there is a lack of factual nexus, and that the reliefs are highly fact-dependent under Ground require the Court to examine and verify disputed facts. These grounds are matters of proof that must be resolved through a trial on the merits. 3. However, the objections raising the legal capacity of the 2nd and 3rd Respondents under Ground 5, the jurisdiction of the Court under Article 165(3)(b) in Ground 1, and the doctrine of exhaustion of alternative remedies under Grounds 2 and 3 are pure points of law that ought to be determined from the pleadings. 4. The Court therefore finds the Preliminary Objection is sustainable only to the extent of these pure points of law, which the Court will address on the merits. The remaining grounds, which depend on the determination of contested facts, do not meet the legal threshold of a preliminary objection and must be resolved through a substantive analysis of the evidence. **Whether the 2nd and 3rd Respondents are proper parties to this Petition?** 1. The Respondents argue that the 2nd and 3rd Respondent lack independent legal personality and cannot be sued separately from the County Government of Homa Bay. Legal personality is the capacity of an entity to bear legal rights and duties, including the power to sue and be sued in its own name. Under the Constitution of Kenya, 2010, and the County Governments Act, 2012, a County Government is established as a single body corporate with perpetual succession and the capacity to sue and be sued. 2. Administrative departments, directorates, and units within a county government are internal operational structures designed to execute devolved functions under the direction of the County Executive. They do not possess separate corporate personality or statutory legal status independent of the parent County Government. Consequently, actions taken by these departments are legally attributed to the County Government, which remains the sole corporate entity capable of incurring liabilities and being bound by judicial orders. 3. In ***Republic v Committee on Senior Counsel & Another Ex Parte Allen Waiyaki Gichuhi* [2021] eKLR**, the court held that for an entity to be made a party to legal proceedings, it must possess independent legal personality. Administrative divisions cannot sue or be sued independently of the principal corporate body. In this case, the both the 2nd and the 3rd Respondents are administrative units of the 1st Respondent. They have no separate legal personality. Any liability arising from the actions of their staff must be borne by the 1st Respondent. 4. The Court therefore upholds this limb of the Preliminary Objection. The 2nd and 3rd Respondent are struck out of these proceedings for want of legal capacity. The 1st Respondent remains the sole and proper Respondent. **Whether the Court is barred from determining the Petition by the doctrine of exhaustion of remedies or the principle of constitutional avoidance?** 1. The Respondents argue that this Court should decline to exercise its constitutional jurisdiction because the Petitioner has alternative remedies, such as filing an ordinary civil suit in tort for assault, battery, and false imprisonment, or pursuing administrative review under the Fair Administrative Action Act, 2015. 2. Section 9(2) of the Fair Administrative Action Act, 2015, codifies the doctrine of exhaustion, requiring a party to exhaust all internal and statutory dispute resolution mechanisms before seeking judicial review of an administrative decision. In the case of *Speaker of the* **Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR**, the court in relation to the doctrine of exhaustion affirmed where alternative dispute resolution or statutory appeal mechanisms are provided by law, they must be exhausted before a party can seek review in the High Court. However, the application of the doctrine of exhaustion is never dogmatic but must be carefully examined in the context of the unique facts of each case. The doctrine is never an automatic bar but must be applied for the sake of meeting ends of justice. It certainly has exception when it must be sidestepped to meet the ends of justice. Like in this matter where there are pleaded alleged direct and grave violations of fundamental rights and freedoms, the court cannot blindly bow to the doctrine as a magical wand of technical panacea. The court takes the view and holds that the doctrine of exhaustion is not applicable in a dogmatic fashion but primarily applies to administrative actions and regulatory disputes where specialized tribunals or statutory bodies are equipped to provide specific remedies. Before the doctrine is invoked and applied the court must consider the appropriateness of the forum for the remedies sought and the sufficiency of such remedies. The doctrine is never applied to defeat an exclusive jurisdiction vested in the court. All this is to underscore the trite position of the law as established by Kenyan jurisprudence that the doctrine had known exceptions. See **R vs Independent Electoral and Boundaries Commission (I EB C) & Others ex parte The National Super Alliance Kenya (NASA)** 40. The court is equally persuaded by the findings in Night Rose Cosmetics [1972] Ltd v Nairobi County Government & 2 others [2018] eKLR as doth: **“In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court”** 1. The court is fully satisfied that the present Petition does not challenge a routine administrative decision or seek to review a regulatory permit. Instead, the Petitioner seeks direct redress for the physical violence, unlawful detention as well as torture inflicted by state officers and which directly implicated his rights under Articles 25(a), 28, and 29 of the Constitution. 2. The right to be free from torture, cruel, inhuman, or degrading treatment under Article 25(a) is an absolute, non-derogable right that cannot be limited under any circumstances. The pursuit for redress for violation of such right can thus not be confined away from the high court. Where a petitioner presents a *prima facie* case of a violation of an absolute constitutional right, the doctrine of exhaustion cannot be used as a procedural barrier to deny access to the Constitutional Court. 3. Furthermore, the Petitioner reported the assault to the police immediately after the incident vide OB No. 28/19/06/2024, and while the ODPP recommended prosecution, no criminal trials were initiated. The state's failure to initiate criminal proceedings cannot bar the Petitioner from seeking civil and constitutional remedies for the violation of his rights. Forcing a victim of physical torture and arbitrary detention to pursue lengthy administrative complaints or civil tort processes before seeking constitutional relief would undermine the right to access justice under Article 48. The objection on the grounds of exhaustion of alternative remedies is therefore found to be meritless and is thus dismissed. **Whether the Petition is fatally defective for failing to meet the pleading standards of precision under the *Anarita Karimi Njeru* doctrine**? 1. The Respondents contend that the Petition is fatally defective because it fails to satisfy the pleading standards set out in ***Anarita Karimi Njeru vs Republic (1979) 1 KLR 154***, specifically because the county askaris are described as unidentified and also for raising allegations of assault and false imprisonment. Under the standard set in ***Anarita Karimi (supra)***, a petitioner in a constitutional matter must state their case with a reasonable degree of precision. This requires the petitioner to identify the specific constitutional provisions alleged to have been violated, the specific acts that constitute the violation, and the manner of such violation. 2. In ***Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others* [2013] eKLR**, the Court of Appeal clarified that the requirement for precision is intended to ensure that the opposite party is fully aware of the case they must meet, and it should not be applied with rigid procedural strictness to defeat substantive justice. This is supported by Article 22(3) of the Constitution and Rule 10 of the Mutunga Rules, which emphasize that procedures for enforcing the Bill of Rights must not be overly formal. 3. A review of the Petition and the supporting affidavit shows that the Petitioner has met the basic standard of precision in pleading his claim. He has set out the exact date and time of the incident being the 19th June 2024 at approximately 12:00 PM; the specific location of his kiosk in Kendu Bay and the Kamodi offices where he was detained; the description of the perpetrators as uniform-wearing county askaris from Rachuonyo North Sub-County; the specific acts of violence (being locked in a room and beaten with wooden batons for three hours; and, the specific articles of the Constitution allegedly violated being Articles 25(a), 28, 29, 47, 48, 49, and 51(1) and how the physical abuse and arbitrary detention violated them. 4. While assault and false imprisonment are indeed common law torts, when they are committed by public officers acting under the colour of official authority and in the discharge of their administrative duties, they cross the threshold into constitutional violations. The askaris were not acting as private citizens; they were uniformed enforcement agents of the 1st Respondent executing county bye-laws regarding business permits. 5. To require a citizen who has been arbitrarily detained and subjected to physical assault by uniform-wearing county enforcement officers to identify their assailants by name as a prerequisite for filing and maintaining a constitutional petition would place an impossible and unjust barrier to accessing justice. 6. The court is thus satisfied that the Petitioner has established a clear factual nexus between his injuries and the actions of the 1st Respondent’s uniform-wearing askaris operating within county-controlled offices. The specific identities of the askaris on duty at that location on that date are administrative records within the special knowledge of the Respondents, which they could have disclosed. 7. The physical beating, arbitrary detention in a dark room for five hours, and denial of medical access constitute a direct violation of the Petitioner’s right to human dignity under Article 28 and security of the person under Article 2, and cross the threshold into torture and cruel, inhuman, or degrading treatment under Article 25(a). Therefore, the objection that the Petition lacks precision because the officers are unidentified is without merit and is dismissed. **Whether the Petitioner’s fundamental rights and freedoms were violated by the employees of the Respondents?** 1. This issue goes to the to the substratum and merits of the Petition hence the Court must determine whether the 1st Respondent can be held vicariously liable for the actions of “unidentified” askaris, whether the Petitioner's rights were violated, and the appropriate remedy. 2. The Petitioner has provided a detailed account of the incident in his supporting affidavit, showing that he was abducted, detained, and subjected to physical assault. To support these allegations, he has submitted a certified copy of the police OB report OB No. 28/19/06/2024, a P3 form confirming that the medical examination conducted immediately after his release revealed chest pains, bruises, and swollen limbs, a detailed medical report Dr. Peter Momanyi documenting physical injuries, scars, and long-term psychological and physical trauma. 3. The Respondents, while urging that they cannot be held vicariously liable because the askaris are “unidentified” by name have not filed any denial to the factual allegations by the petitioner. In law including constitutional litigation was a claimant asserts and not controverted by the respondent is deemed admitted subject to proof of the allegations of the injury. The court thus finds that the assertions by the petitioner that he was unlawfully arrested, detained and assaulted leading to both physical and emotional trauma and injury have not been denied but have been adequately established by the evidence deposed in the affidavit of the petitioner. 4. The court is satisfied that the properly pleaded constitutional claim has been properly proved to the requisite standards and that the petitioner is entitled to the remedy of damages for the violation of the rights disclosed 5. The argument that the respondent cannot be held liable for the actions of the unidentified employees legally unsustainable in the law of pleadings, constitutional and public law. In the law of pleadings which derivable form the right to fair hearing it is basic that one must take a factual standpoint by its pleadings so that the opposite party acquires and exercises the right to reply. As said before the respondent never responded to the affirmative assertions in the petition as supported with the evidence in the Affidavit in support. 6. In addition, the law the court takes the leaning from as espoused in ***Dominic Arony Amolo v Attorney General* [2003] eKLR**, is well established that a petitioner is not required to identify individual state officers by name to attach liability to the state. It is sufficient to prove on a balance of probabilities that the perpetrators were uniformed officers of the state organ acting in the course of their employment. 7. Here, the Petitioner has presented uncontroverted evidence that he was accosted at his business kiosk by uniformed county inspectorate askaris, taken directly to the county administrative offices at Kamodi, and beaten there while being questioned about his business permit. These facts demonstrate that the askaris were employees of the 1st Respondent acting within the course of their employment. 8. While that is the trite position of the law, the court takes the additional learning that to enforce integrity and accountability upon individual public official, it is desirable that where such violators are identifiable, they be personally joined so that where their actions pass as evidently unmerited and unbefitting of their offices, they be made personally liable without burdening the public resources by unlawful, unjustifiable or just illegal conducts. 9. Because the 1st Respondent failed to file any replying affidavit on the merits, relying solely on the Preliminary Objection, the Petitioner’s factual account as set out in the Supporting Affidavit remains completely uncontroverted and are deemed admitted. Consequently, the facts regarding the Petitioner’s arrest, detention, and physical assault by the county askaris are undisputed and stand as proven before this Court. 10. On whether these acts constitute violations of the constitutional provisions cited by the Petitioner, the court finds that the petitioner’s right under Article 25(a) on freedom from torture and cruel, inhuman, or degrading treatment or punishment non-derogable right was violated when he was locked in a room at Kamodi and repeatedly beaten with batons for three hours. On Article 28 which guarantees theright to inherent dignity and to have that dignity respected and protected, by forcefully taking the Petitioner from his business, detaining him and subjected to physical assault amounts to violation of his right to dignity. 11. The Petitioners right to freedom and security of the person including the right not to be deprived of liberty arbitrarily or treated in a cruel manner under Article 29 were also violated whenthe Petitioner was forcefully taken from his kiosk and detained in a room without legal process or trial. The 1st Respondent’s officer also violated the Petitioner’s right under Article 51(1) ofdetained persons and persons held in custody, by holding the him in custody in a locked room at the Kamodi offices and subjecting him to physical abuse is a clear violation. 12. Further, having been arrested under the guise of permit enforcement without any lawful process or notification of his rights violating his right to fair administrative action under article 47. Finally, his rights of an arrested persons including the right to be informed promptly of the reason for the arrest under article were also violated when the 1st Respondents officers detained and beaten without being informed of any charges or reasons for his arrest until after the assault. 13. Having established those actual constitutional violations occurred, the Court must determine whether the 1st Respondent is vicariously liable for the actions of the askaris. The doctrine of vicarious liability dictates that an employer is liable for the tortious or unlawful acts committed by its employees or agents during the course and scope of their employment. 14. The askaris involved were uniform-wearing enforcement officers of the Homa Bay County Government. The uncontroverted stated reason for their actions namely, the enforcement of compliance with the county’s business permit requirements falls directly within the statutory mandate of the 1st Respondent to collect revenue and enforce its county bylaws. Therefore, the askaris were acting within the course and scope of their employment, and the 1st Respondent is vicariously liable for the severe constitutional violations and injuries they inflicted upon the Petitioner. 15. Having found that the 1st Respondent is vicariously liable for the violations of the Petitioner’s constitutional rights, the Court must then determine the appropriate reliefs to be granted.1 16. The court is satisfied and finds that the Petitioner is entitled to declarations that his rights under Articles 25(a), 28, 29, 47, 49, and 51(1) of the Constitution were violated by the employees and servants of the 1st respondent. With such determination, the court further finds that the petitioner is entitled to damages for the violations and assesses such damages in the sum of Kshs 1,000,000 17. In rendition, the court enters judgment for the petitioner and thus makes the following specific orders: - 18. The Respondents’ Notice of Preliminary Objection dated 5th June 2025 is upheld only to the extent that the 2nd and 3rd Respondent lack independent legal capacity to be sued. Those tow are hereby struck out of this Petition. 19. The Notice of Preliminary Objection is dismissed on all other grounds. 20. The Petitioner's Petition dated 12th September 2024 is allowed against the 1st Respondent and orders are granted that: - 1. A declaration is hereby issued that the 1st Respondent, through the actions of its employees and agents (the county askaris), violated the Petitioner’s fundamental rights and freedoms guaranteed under Articles 25(a), 28, 29, 47, 49, and 51(1) of the Constitution of Kenya, 2010. 2. An order is hereby issued directing the 1st Respondent to pay to the Petitioner general and compensatory damages for the constitutional violations and physical injuries in the sum of Kshs.1,000,000/= (One Million Shillings Only). 3. The 1st Respondent shall pay the costs of this Petition to the Petitioner. 4. Damages and costs shall attract interests at the court rates of 14% pa from the date of this judgment till payment in full. Dated, signed and delivered virtually this 12th day of June, 2026  Patrick J O Otieno Judge