[2020] KEHC 10244 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 416 OF 2019

ANTHONY MULI NZIOKA.............................................PETITIONER

VERSUS

THE ATTORNEY GENERAL.........................................RESPONDENT

JUDGMENT

PETITION

1. The Petitioner by way of his Petition and Supporting Affidavit dated 4th September 2019 prays for the following orders from the Court:-

a) A Declaration be and is hereby issued that the Petitioner’s detention on 31st March 2005 to 22nd July 2008 was against Article 49 (1) of the Constitution of Kenya thus illegal unlawful and unconstitutional.

b) General Damages for unlawful and illegal detention and compensation as Court Orders in Criminal Case 105 of 2005.

c) Costs and interest hereon on (b) above at court’s rates

d) Any other relief that the Honourable Court may deem fit and just to grant.

PETITIONER’S CASE

2. The Petitioner asserts that on 31st March 2005 he was arrested and detained for more than 6 months without being charged in court, and during his detention, he was mistreated and tortured. The Petitioner claims that his detention was illegal and unlawful as he was not informed properly in a language he understood the reasons for his arrest.

3. Upon being acquitted, the State was ordered to compensate the Petitioner as evidenced in the Ruling for Criminal Case No. 105 of 2005, Republic v Anthony Muli Nzioka & 4 others.

4. The Petitioner filed an undated Further Affidavit on 19th November 2019 in response to the Respondent’s Ground of Opposition. The Petitioner avers that the orders sought from this court are to enforce the orders of the High Court Judge Hon. Justice Ojwang in Criminal Case No. 105 of 2005 Republic v Anthony Muli Nzioka & 4 others.

5. The Petitioner asserts that it has made efforts to pursue his claim in vain as the court file could not be traced to date, and thereafter he filed High Court Criminal Misc. Application No. 154 of 2018 in which he was directed to file this Petition.

RESPONDENT’S CASE

6. The Respondent filed Ground of Opposition on 5th November 2019, asserting that the Petitioner has not raised any constitutional issues for determination.

7. Furthermore, it is contended that the Petitioner seeks to review the orders of the Criminal Case No. 105 of 2005 Republic v Anthony Muli Nzioka & 4 others.The Respondent avers that this court’s jurisdiction to enforce the orders therein has been prematurely and improperly invoked. Therefore, the Petitioner should have made a written application to the Chief Justice for appropriate directions so as to move the High court in the criminal case.

8. Furthermore, the Respondent asserts that the Constitution does not allow for its retrospective application therefore its application is bad in law and inconsistent with this doctrine.

ANALYSIS AND DETERMINATION

9. I have very carefully considered the Petition; the affidavit in support, the Respondent’s response; the parties written submissions, and from the same the issues for consideration are as follows:-

a) Whether the Petition raises any constitutional issue(s) for determination?

b) Whether the Petition is fatally defective?

c) Whether the Petitioner is entitled to the reliefs sought?

A. WHETHER THE PETITION RAISES ANY CONSTITUTIONAL ISSUE(S) FOR DETERMINATION?

10. The Petitioner’s Petition sets out brief facts of the Petitioner’s case and prays for the orders in the Petition for a declaration that the Petitioner’s detention on 31st March 2005 to July 2008 was against Article 49(1) of the Constitution of Kenya and thus illegal, unlawful and unconstitutional. The Petitioner further pray for General Damages for unlawful and illegal detention arising out of orders in criminal case no. 105 of 2005 with costs.

11. Reading from the Ruling in the High Court of Kenya at Nairobi Criminal Division Criminal case No. 105 of 2005 Republic vs. Joseph Zakayo Matha; Sammy Ndiku, Anthony Muli Nzioka, John Mutinda and Morris Odhiambo by Hon. Justice J. B. Ojwang, (as he then was), the Court gave its final orders in the following terms:-

“1. There is no prima facie case against all the five accused, and accordingly, by virtue of ~Section 306(1) of the Criminal Procedure Code (Cap 76 Laws of Kenya), I hereby acquit all of them, and order that they shall forthwith be set at liberty, unless they are otherwise lawfully held.

2. I hereby declare that all the five accused persons were unlawfully detained in connection with the proceedings herein and they are entitled to compensation by the state as provided in Section 76(2) of the Constitution of Kenya, I order that compensation shall be duly paid to each of the five accused persons.

3. This file shall be placed before my Lordship the Chief Justice to give directions for assessment of compensation payable in terms of order no.2 herein.”

12. The Respondent urge that the Petitioner in this Petition has invoked Article 22 of the Constitution which grants every person the right to move the High Court for enforcement of fundamental rights and freedoms. The petition as drawn and filed specifically refer to Articles 2(1), 10(1), and (2)(b), 19(2), (3), (6), 20(1), (2), 23(1)(3), 25(a), 27(1)(2), 28(1), 29(a), (b), 49(1) (a) (c), (f) of the Constitution in its title. Looking at the body of the petition it reveals that the Petitioner has provided little or no particulars at all as to the allegations of infringement and the manner of the alleged infringements. In addition to the aforesaid it is clear that the petitioner’s claim for unlawful detention was determined by the trial Court in the criminal case as per its orders replicated herein above.

13. The rights under the Bill of Rights are specifically spelled out in our Constitution. A Petitioner seeking reliefs based on violation of the Bill of Rights is under obligation to set out with some level of particulars of the specific rights allegedly breached and indicating how they have been violated. The principle is well settled as set out in the case of Anarita Karimi Njeru v. Republic No. 1 (1979) 1 KLR, 54and firmly engrained in the case of Mumo Matemu v. Trusted Society of Human Rights Alliance Civil App. 290/2012 (2013) eKLR. The Court in the Anarita case (Supra)held thus:-

“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complaints, the provision said to be infringed, and the manner in which they are alleged to be infringed.”

14. It is further noted that Hon. Nyamu J; while dealing with an application under Section 84 of the repealed Constitution alleging violation of fundamental rights in Kenya Bus Services Ltd v. Attorney General (2005) 1 KLR 287, observed as follows at p. 798;

“The Constitutional mandate given to the High Court under Section 84 of the Constitution is a serious one. The courts cannot countenance the process being trivialized or abused and applications falling under this category can in my view be challenged and dismissed or struck out. Judgments of competent courts cannot be challenged in a constitutional court except on grounds of lack of due process or anything that borders on unconstitutionality.”

15. Nyamu J further made the following important observations at page 799:

“In addition, although there is no direct local authority on the point, the holding No. 3 in the Trinidad and Tobago Constitutional case of Re Application by Bahadur [1986] LRC (Const) 297 at page 298 represents our positon as well;

“The Constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can found a claim under substantive law, the proper course is to bring the claim under that law and not under Constitution. See Harrikson Vs. Attorney General of Trinidad and Tobago [1979] 3 WLR 62 applied.”

16. Similarly in Benard Muage v Fine Serve Africa Limited & 3 Ohters [2015] eKLRthe Court stated as follows…

“Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.”

17. I have very carefully considered the Petitioners’ claim as drawn and filed and the reliefs sought herein; and with tremendous respect I find that what has been placed before this court is no semblance to a Constitutional Petition for which it can be urged, it is pleading breach of fundamental rights but rather; a claim that can only be enforced in ordinary civil dispute in an action for claim of damages. I find the Petitioner does not raise or plead any issue of constitutional interpretation or application; he merely cites various constitutional provisions alleged to have been violated without any solid demonstration of Constitution breach or threat which in my view is not good enough and supported by the relevant case law.

18. Turning back to the Ruling by Hon. Ojwang J, (as he then was), in Criminal Case No. 105 of 2005 delivered on 22nd July 2008, the Petitioner seeks damages for malicious prosecution, an action that can simply be remedied in an ordinary Civil Suit in the Chief Magistrate’s Court. Where there exists in a case an alternative remedy through statutory law; then it is desirable that such remedy should be pursued first. Secondly the claim by the Petitioner can be dealt with under ordinary civil claim and not under the Constitution. The same should have as such been lodged as a civil claim before appropriate court but not before constitution division for there is nothing that is demonstrated as constitutional in this Petition.

19. I have considered the Petitioner’s response and the Petition which has several constitutional provisions, however the only provisions which is urged to have been infringed in the Petition is Article 49 of the Constitution. However it is clear that the trial Court in Criminal Case No. 105 of 2005 Republic v. Joseph Zakayo Mathia & 4 Others, made a declaration to that effect in its Ruling dated 22nd July 2008, leaving nothing for further consideration by this Court.

B. WHETHER THE PETITION IS FATALLY DEFECTIVE?

20. It is clearly stated under Article 22(3) (d) and Article 159(2) (d), that Court in dispensing justice should not pay undue regard to procedural technicality. Article 22(3)(d) provides;

“22. Enforcement of Bill of Rights

(3)The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—

(d) the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities;”

21. Article 159 (2) (d) of the Constitutionprovides;

“159. Judicial authority

(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(d) justice shall be administered without undue regard to procedural technicalities;”

22. In the case of Saggu V. Roadmaster Cycle vs. \ltd (2002) 1 EA 258,the Court of Appeal of Uganda held that:

“the defect in the jurat or any irregularity in the form of an affidavit cannot be allowed to vitiate an affidavit in view of Article 126 (8), of the 1995 Constitution, which stipulates that substantive justice shall be administered without undue regard to technicalities. I should perhaps mention that the jurat is the short statement at the foot of the affidavit indicating when, where and before whom it was sworn. It would follow that the learned judge had the power to order that the undated affidavit be dated in court or that the affidavit be re-sworn before putting it on record. He was also correct to penalize the offending party in costs”.

I accept the foregoing enunciation of the law as a correct overview on this subject. However, I must also say that the said case is distinguishable from the matter before me. In the Saggu case(supra) the deficiency in the affidavit was the absence of a date in the affidavit. That omission offends the provisions the Ugandan Oaths Act. In this country, it would offend the provisions of section 5 of the “Oaths and Statutory Declarations Act” Cap 15, of the Laws of Kenya. That Section provides as follows;

“Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made”.

When faced with the undated affidavit, the superior court declined to make a ruling on the submission of counsel, that the affidavit was incurably defective. Subsequently the Court of Appeal was invited to hold that the affidavit was incurably defective. However, the Court of Appeal of Uganda held that the statutory provision

“which renders it mandatory to date the affidavit before tendering it in court simply means that an affidavit cannot be used without dating it or indicating where it was sworn and before whom. The errors and omissions regarding the date, place and the commissioner cannot vitiate an application”.

23. The Respondent’s urge that the Petitioner’s further affidavit is undated and unsworn and that the purported annexture, are not marked. I have perused the further affidavit and indeed note the same is undated and unsworn. The annextures are not signed by the commissioner for oaths. The affidavit in support on the other hand is dated and sworn.

24. The Respondent contend that the supporting affidavit dated 4th September 2019 bears the signature of the Petitioner in copied form without certification. That it is the true copy of the original as required by law.

25. Rule 4 of the Mutunga Rules provides that where a right or a fundamental freedom provided for in the constitution is allegedly denied, violated or infringed or threatened, a person so affected or likely to be affected, may accordingly make an application to the High Court. The Application is provided for under Rules 10 and 11 of the Mutunga Rules.

26. Rule 11(2) of the Mutunga Rules particularly provides for;

“If a Party wishes to rely on any document the document shall be annexed to the supporting affidavit or the Petition where there is no supporting affidavit.”

27. The Respondent urge that while constitution provides that court shall not be unreasonably restricted by procedural technicalities, Court have severally interpreted unsigned pleadings as fatally defective. The Respondent sought reliance from the case of Supreme Court where it stated the effect of an affidavit that is not signed by the person who is said to be the deponent, not dated and/or commissioned by a commissioner for oaths/magistrate in Civil Application No. 26 of 2018 Gideon Sitelu Konchellah v. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR (para.6-8) as follows:

“[6] As regards the 1st Respondent; it came to the notice of the Court that the said affidavit is not signed, dated or commissioned. This posed the question to the Court; what is the effect of an affidavit that is not signed by the person who is said to be the deponent, not dated and/or commissioned by a Commissioner for Oaths/or magistrate?

[7] The making of affidavits is governed by the Oaths and Statutory Declarations Act, Cap 15 Laws of Kenya. Section 5 of the Act provides, thus;

“Every Commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

Further, Section 8 states:

“Magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form in the Schedule.”

Hence, an affidavit must clearly state the place and date where it was made and it must be made before a Magistrate or a Commissioner for oaths.

[8] We have no hesitation in finding that the purported Replying Affidavit filed by the 1st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has not legal value in the matter before us. We have cheeked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1st Respondent.(Emphasis mine)

28. In the instant Petition I find the supportive affidavit is the original document, it is duly dated and signed and properly before the court. However the further affidavit is not dated nor signed and annextures are not commissioned. The same is therefore fatally defective and is expunged from record.

29. The case relied upon by the Respondent can however be distinguished in that it was an election petition and not a Constitution Petition. Rule 11(1) of the Mutunga Rulesprovides thus:

“The Petition filed under these rules may be supported by an affidavit.”

30. From clear reading of Rule 11(1) of the Mutunga Rules, it appears in my view that a Petition may be filed without a supporting affidavit. The word used is “may be supported by an affidavit” which to me is not mandatory to file all petitions with supporting affidavit. However there is no bar where a party wishing to rely on any document, to annex the document to the supporting affidavit or the petition where there is no supporting affidavit. It therefore follows if a party has to attach an affidavit it has to be properly drawn, signed, dated and commissioned but it appears there is no bar where a party do not wish to file an affidavit, to attach the document to Petition even without a supporting affidavit. In addition to the above Rule 10(3) of the Mutunga Rules provides:

“Subject to Rules 9 and 10 the Court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.”

31. The Respondent in seeking to have Petitioner’s unsworn further affidavit expunged from the Court record rely on Rule 9 of the Oaths and Statutory Declaration Act and also relies in the decision of the Honourable Court in Machakos ELC Case No. 21 of 2016 Francis A. Mbelanga vs. Cecilia W. Waema (2017) eKLR,where it was held that;

“15. It is trite in law that an Affidavit and the annexures attached on it constitute evidence. Indeed, where a person seeks to proof a fact by way of Affidavit, he is obligated to exhibit any document on his Affidavit.

16. However, before such a document can be received in evidence by the court, the law requires that such a document must be sealed by the Commissioner for Oaths.

17. The law that requires the sealing and marking of annexures with serial letters is in mandatory terms, and must be complied with.

18. Although the Plaintiff’s advocate submitted that the failure to seal and mark the annexures is a defect in form that should be ignored by the court, the law has declared in mandatory terms that annexures must be sealed and number. That is the only way they can be allowed on record.

19. It is therefore not true, as submitted by the Plaintiff’s counsel, that the failure to seal and number the annexures is a procedural technicality that can be saved by the provisions of Article 159(2)(d) of the Constitution and Section 1A and 1B of the Civil Procedure Act.”

32. In the case of Mwahima Mwalimu Masudi v Independent Electoral and Boundaries Commission & 3 others [2017] eKLR

55. The relevance of Article 159(2) (d) of the Constitution was also discussed in the case of Nicholas Kiptoo Arap Korir Salat vs. IEBC & 6others [2013] eKLR where Kiage JA stated:

“…I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both commend courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines…”

33. IN view of the fact that the Court’s copy of the Petitioner’s supporting affidavit being an original copy and contrary to the Respondents allegations, and that it bears the signature of the Petitioner and is dated in the original form, I find that the Petitioners, Petition is properly before court and is not fatally defective notwithstanding a further affidavit is defective and is expunged from the Courts record.

C. WHETHER THE PETITIONER IS ENTAILED TO THE RELIEFS SOUGHT?

34. The Petitioner in the instant Petition, is seeking to enforce the judgment issued by the High Court in Criminal Case No. 105 of 2005 on 22nd July 2008. The trial Court found that all the accused in the case before it were entitled to compensation by the state, as provided under Section 72(8) of the Constitution of Kenya (repealed). The Court directed that the file be placed before His Lordship the Chief Justice to give directions for an assessment of compensation payable in terms of Order no. 2 therein.

35. The Petition herein seeks to review the orders of the Honourable Court in Kisumu High Court Criminal Case No. 105 of 2005; a Court of concurrent jurisdiction; which this court cannot do. Considering the orders as given by court on 22nd July 2008, in the criminal case, and considering the jurisdiction of this court, in which the Petitioner is seeking to enforce under the aforesaid orders, I find the directions given in the HCCr C No. 105 / 2005 has not been complied with. There is no indication of the said file having been placed before His Lordship the Chief Justice to give directions for an assessment of compensation payable in terms of order No. 2 in the Judgment of Hon. J. B. Ojwang J, (as he then was). I therefore find the jurisdiction of this court has been prematurely and improperly invoked.

36. It is also noted that the orders given by the Court as contended by the Respondents, in the Criminal Case kept the matter alive in that particular Court. The Petitioner has not moved the aforesaid court but choose to file the present Constitutional Petition. The Petitioner ought to proceed on and move that particular Court through a written application to the Chief Justice for appropriate directions to the trial Court. The Constitutional Petition as drawn is bad in law; and even if this court, was persuaded to allow the petition and reliefs as prayed, the same would be in vain as the orders sought herein, have already been granted in the criminal case.

37. This court notes that the present petition was filed in 2019, Eleven (11) years since the Ruling was delivered. No evidence has been tabled before this Court to demonstrate the drawing of the decree. Section 25, 30 & 38 of the Civil Procedure Act deals with the execution of the decrees. Order 22 of the Civil Procedure Rules 2010, is clear that a Judgment is capable of execution only upon extraction or drawing up of a formal decree. It should therefore be noted that it is the decree as a legal instrument, which is executable and not the judgment itself. The Petition as drawn and filed in the absence of the extracted decree is premature. Further in absence of the criminal file to extract the decree, as alluded to, the Petitioner is at liberty to apply to the Court which dealt with the criminal case, to have the court file reconstructed, which is the proper avenue for the Petitioner to pursue.

38. The Court in dealing with an issue regarding proper procedure to follow in execution of Court decree, in the case of DansonMuriithi Ayub vs. Evanson Mithamo Muroko (2015) eKLR stated that

“21. A successful litigant in civil proceedings is unable in law to enjoy fruits of any judgment in his/her favour if he does not extract or draw a decree. In the case of RUBO KIMNGETICH ARAP CHERUIYOT –VS-PETER KIPROP ROTICH (2006) e KLRthe court made the following observation

‘Itis a decree as a legal instrument which is executable and not the judgment itself. It is my view that in a suit what is executable is the “decree” of the court. I have carefully perused the court record and find that no decree has ever been drawn, approved and signed by the court through the Deputy Registrar or otherwise. It is trite law that no execution of any decree can take place without such a decree.’ ”

39. In the instant Petition the Petitioner’s pray for declaration that his rights under Article 49(1) of the Constitution has been violated. He claims for compensation for wrongful detention. The two prayers were dealt within theCriminal Case No. 105 of 2005 Republic vs. Joseph Zakayo Mathia, Sammy Ndiku, Anthony Muli Nzioka, John Mutinda and Morris Odhiamboand the Court made clear and final orders to that effect, and it is only from that decision where the Petitioner can pursue is claim.

40. The High Court (Organisation and Administration) (General) Rules 2016, under Section 36(2) (e) and (3) provides that the Registrar is in charge of reconstructing missing files and the court may order the tracing and reconstructing a missing file. The petitioner has failed to extract a decree in order to benefit from the judgment claiming that it is not possible to trace the court file which went missing. He avers, he filed an application to have court file reconstructed however he was directed by a judge to file this Petition in Misc Criminal Application Case No. 154 of 2018 Anthony Muli Nzioka vs. Director of Public Prosecution. The Petitioner has nevertheless not produced these directions, however this should not preclude him from applying for reconstruction of the Court file before the appropriate court.

41. The Petitioner in the instant Petition urges that he was earning a daily wage of Kshs.1500/= as a shoe maker. It is noted that no evidence has been adduced to sustain his claim. This claim is unsubstantiated and incapable of being granted.

42. Having come to the conclusion that I have and more specifically that the Petition raises no Constitutional issues to warrant determination of the claim by a Constitutional Court; that the Petition is premature; that the Petitioner seeks to enforce the orders issued in Criminal Case No. 105 of 2005 and that the Petitioner is yet to extract the decree amongst other findings, I find that this Petition is for striking out.The Petition is struck out and dismissed.

43. Each party to bear its own costs.

Dated, Signed and Delivered at Nairobi on this 29th day of October, 2020.

……………………

J. A. MAKAU

JUDGE