[2015] KEHC 1534 (KLR)

REPUBLIC OF KENYA

HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 89 OF 2013

C A M ……………………………………………………………..PETITIONER

VERSUS

THE HON ATTORNEY GENERAL …………………… ..1ST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS……..2ND RESPONDENT

INSPECTOR GENERAL OF POLICE …………………..3RD RESPONDENT

JUDGMENT

Introduction

The petitioner has lodged the present petition alleging violation of her constitutional rights under Articles 25(a), 28, 29(c),(d) and (f), 43 and 49 of the Constitution following her arrest and prosecution in Kibera Criminal Case No. 1755 of 2011 (later consolidated with Kibera Criminal Case No 1592 of 2011).

In the petition dated 8th February 2013, the petitioner seeks the following orders:

A declaration that the sexual assault, mistreatment, abuse and wounding leveled against the petitioner was in violation of the petitioners fundamental rights and freedoms contrary to Articles 25(a), 28, 29(c),(d) & (f), of the Constitution of Kenya.

A declaration that the detention of the petitioner in Police Custody without access to any medical treatment whilst visibly wounded and in great pain was a violation of the petitioner’s fundamental rights to health care services contrary to Article 43(1)(a) & (2) of the constitution of Kenya.

A declaration that the petitioner rights as an arrested person were violated as she was not informed promptly the reasons for her arrest until the time she was arraigned in court contrary to article 49(1)(a)(i) of the Constitution of Kenya.

A declaration that the trial in Kibera Criminal case no. 1755 of 2011 (later consolidated with Kibera Criminal Case No 1592 of 2011) is tainted with illegality and is therefore null and void for violation of fundamental rights of the petitioner as set out on the constitution of Kenya.

An order of compensation in general and special damages.

An award of exemplary, aggravated and/ or punitive damages for blatant, callous, oppressive and highhanded violation of constitutional rights by the officers of the government.

Costs of the petition and interests on (e) and (f) above.

Any other relief that this Honourable Court may deem fit to grant.

The petition is supported by an affidavit sworn by the petitioner on 8th February, 2013. The petitioner also gave oral evidence in support of her case.

The respondents oppose the petition. The 1st respondent filed grounds of opposition dated 22nd July 2014 while the 2nd and 3rd respondents filed an affidavit sworn by No. 84195 Police Constable Luke Muraya dated 23rd April 2014. PC Muraya also gave oral evidence and was cross-examined thereon.

The Petitioner’s Case

In her affidavit in support of the petition, the petitioner avers that she was, on or about 21st May 2011, lawfully going about and minding her own activities when she was suddenly ambushed by four men. They allegedly grabbed her by her hair, pulled it and slapped her repeatedly until blood started oozing on her face, then bundled her into a motor vehicle.

She further avers that they continued to beat her up until her clothes were tainted with blood stains. They did not stop even after she pleaded with them to, nor did they disclose the reasons for their actions or who they were.

The four men then took her to Kinyago Police Station at around 4p.m. and later on to Kariobangi North Police Station where she was booked under OB35/21/5/2011. She further avers that she was detained at Kariobangi North Police Station with people who informed her that they were serving their sentences.

The petitioner further avers that the police told her they would come for her later, which they did at around 11 p.m. that night and took her to Hardy Police Station. She alleges that on the way, the policemen stopped the car in darkness and ordered her out of the vehicle, then raped her in turn.

The petitioner further deposes that upon arrival at Hardy Police Station, another officer came in with an object which resembled a bottle, called her “Malaya”, ordered her to strip and gave her the bottle to insert into her private parts. She deposes that upon her refusal, he slapped her several times and attempted but failed to insert the object in her private parts.

The petitioner further avers that the following day, before she was charged in court, the officer who had sexually assaulted her with an object ordered her to change her clothes as they were full of blood stains and offered her alternative clothing. She was charged in Court on 23rd May 2011 with the offence of stealing in Kibera Criminal Case No. 1755 of 2011 which was later consolidated with Kibera Criminal Case No. 1592 of 2011. She was alleged to have stolen various items of clothing from the complainant’s house.

The petitioner alleges that the charge against her was a frame up as the clothes alleged to have been stolen were found with one Victor Mutachi who was convicted on his own plea of guilty in Kibera Criminal Case No. 1592 of 2011.

According to the petitioner, while she was in court, the trial magistrate noticed the injuries on her face, which was visibly swollen, and ordered that she be taken to hospital. She avers that this was not done, that she was detained in custody for a further two days, then she was charged in court on 26th May 2011 and released on a cash bail of Ksh20,000.

The petitioner alleges that throughout her detention the police, unlawfully and in violation of her fundamental rights as an arrested person, denied her access to any person from the outside who could render assistance; in particular, that they denied her access to a doctor or health services though she was wounded, in gross pain and her wounds required dressing.

The petitioner avers that after she was released on a cash bail, she immediately visited Nairobi Women’s Hospital for treatment and was examined by a Dr. Thuo who prepared a medical report on her behalf. She has annexed to her affidavit a medical report dated 13th June 2011 (Annexure “CAM 1”) signed for Dr. Thuo and bearing the date stamp of 20th June 2011.

The petitioner avers that she did not report the matter to the police for fear of further victimization as the people whom she was to complain against and to who she was to complain were the ones who assaulted her. She avers that she was, however, able to complain to the Commissioner of Police with the assistance of a non-governmental organization, the Independent Medico-Legal Unit (IMLU). She has annexed as “CAM 2(a) and (b) a complaint form and the letter from IMLU to the police dated 17th and 6th July 2011 respectively. It is her testimony that she has been psychologically traumatised as a result of the harassment and assault by the police officers.

In her oral testimony, the petitioner told the Court that she lives in Homa Bay County Mbita where she gives motivational talks in schools. She adopted as true the averments in her affidavit which I have set out above.

In cross-examination by Counsel for the 2nd respondent, the petitioner stated that she first reported what happened to her at the Kibera Law Courts on 7th June 2014 when the Magistrate asked her what had happened to her as she was bruised and full of blood. She further stated that she cannot remember what happened on 23rd May 2011, though she thought that was the date she was taken to court.

She also testified on cross-examination that she was arrested on 23rd May 2011 by people she later came to learn were police officers. That after the police had beaten her, she was told to wash her blouse and was given a flowered dress and told to change but refused. She maintained that she had refused to change into the clothes offered by the police, and that she informed the Magistrate that she had been raped by police officers and the court ordered that she be taken to hospital, but this was not done and instead she was taken back to Hardy Police Station and later to Lang'ata Women’s Prison. She also stated that she reported (the assault) at the prison and was treated at the Prison Hospital, but that there were no records of the treatment. It was also her evidence on cross-examination that she went to the Nairobi Women’s Hospital where she was referred by the Lang'ata Hospital.

Upon cross-examination by Counsel for the 2nd respondent, the petitioner testified that she once worked for a lady called Grace Nzioka, looking after her sick mother, in Hardy, Karen, but decided to leave. She denied knowing a Victor Mutachi but stated that she had heard that there was a theft and that the magistrate lost clothes.

The petitioner testified that she was arrested in Dandora by four men, but that she did not know that they were police officers. She further maintained that they raped her. She also agreed that she went to see a doctor after two months.

When re-examined by her Counsel, the petitioner stated that she reported the issue of being harassed and beaten up to the magistrate, who ordered that she be taken to hospital. She also stated that she stayed in Lang’ata Women’s Prison for two months. According to the petitioner, the report by Dr. Thuo was prepared after she left custody. She could not remember when she was charged in court, or how long she stayed in custody, but she maintained that she was examined by Dr. Thuo.

The petitioner had indicated an intention to call Dr. Thuo, who had allegedly examined her, as a witness. Though she was granted an adjournment on 8th October 2014, 26th November 2014 and 3rd February 2015 to call Dr. Thuo as a witness, and the matter was further adjourned on 17th February 2015 as Counsel for the 2nd respondent was not available, the petitioner did not call the said doctor. The petitioner’s case was closed on 5th May 2015.

The Case for the 2nd and 3rd Respondents

The 2nd and 3rd respondents relied on the affidavit of No 84195 PC Luke Murayasworn on 23rd April 2014 as well as two statements dated on 8th May and 29th June 2011.

In his affidavit, PC Muraya states that he is a police officer attached to Hardy Police Station in Karen Nairobi and was one of the investigating and arresting officers in the case against the petitioner.

He avers that the petition and affidavit in support are misconceived, frivolous, incompetent, an abuse of the court process, are full of falsehoods and are only meant to pervert the cause of justice and should thus be struck out with costs.

PC Muraya avers that on 8th May 2011, the complainant in this case, Grace Nzioka, brought to Hardy Police Station in Karen, Nairobi a suspect by the name Victor Mutachi whom she had arrested. She reported a case of stealing by the said suspect and her house help, C A M, the petitioner herein, who had escaped arrest. The complaint against the petitioner was that she had escaped from the complainant’s house after stealing clothes with the assistance of Victor Mutachi.

PC Muraya avers that they unsuccessfully searched for the petitioner on 8th May 2011 within the Karen Area. On Saturday 21st May 2011, he and other officer arrested the petitioner within Dandora area. He avers that they introduced themselves to the petitioner and notified her the reasons for her arrest as required by law. He deposes that when they introduced themselves to the petitioner, she became wild and started shouting, “thieves” in order to attract the attention of members of the public and thwart the arrest. She was however, unsuccessful as the arresting officers were in the company of officers known to the members of public who were present.

PC Muraya states that the petitioner violently resisted arrested and they were forced to use reasonable force as a result of which she sustained minor injuries on her head.

The petitioner was booked at Kariobangi Police Post before being taken to Hardy Police station on the same day. She was charged in court on Monday 23rd May 2011 with the offence of stealing. PC Muraya has annexed to his affidavit the investigations diary and the charge sheet in respect of the petitioner, as well as his statements on the case and the circumstances surrounding the arrest of the petitioner.

He further deposes that following the petitioner’s allegation that she had been tortured and sexually molested by police, an inquiry was initiated and several persons recorded statements with the police. The statements were produced in evidence as annexures to PC Muraya’s affidavit. It is his deposition that the complaint by the petitioner was thoroughly investigated and a report generated which set out the findings and recommendations from the inquiry.

PC Muraya denies that the petitioner was tortured, molested, assaulted, humiliated, injured or otherwise sexually abused by police officers as alleged. She did not complain at any police station or to any police officer or authority about the alleged sexual abuse, assault, torture or humiliation by either police officers or the complainant, nor did she apply for a P3 form for purposes of medical examination.

PC Muraya avers that the petitioner’s allegations are an afterthought only meant to pervert the cause of justice and prevent or distort the criminal charges that she was facing before the Chief Magistrate in Kibera Law Courts.

In his oral evidence, PC Muraya, who indicated that he had been transferred to West Pokot but was previously working at Hardy Police Station, adopted his averments set out above and his two statements made on 8th May and 29th June 2011.

Upon cross-examination by Counsel for the petitioner, PC Muraya stated that on the day they arrested the petitioner, there were 3 police officers and one lady, who was not a police officer, but who was there to assist with identifying the petitioner. The police officers were in plain clothes but had their certificates of appointment which, whether or not they are in uniform, they produce to suspects.

He reiterated his averment that the petitioner was resisting arrest and they had to use reasonable force, and that the petitioner was slightly injured in the process of arrest.

PC Muraya also confirmed that the petitioner was taken from Kariobangi to Hardy Police Station at night, around 11 p.m. by the police officers and the lady who was not a police officer.

On re-examination by Counsel for the 2nd respondent, PC Muraya stated that the lady who accompanied them, whose name was Mercy, had stayed with the petitioner before and knew her physically. He further stated that the petitioner had stolen the said Mercy’s utensils and so she too was looking for the petitioner.

According to PC Muraya, they decided to transport the petitioner to Hardy Police Station at night as they had a problem with their vehicle which they needed to fix, and they also need to eat as they had not eaten all day.

The Case for the 1st Respondent

The Attorney General did not file an affidavit in reply but relied on the grounds of opposition dated 22nd July 2014 which are as follows:

That the petition is frivolous, vexatious and an abuse of the court’s process and meant to circumvent the criminal justice system in the ongoing criminal case No 1755 of 2011 later consolidated with Kibera Criminal case no 1592 of 2011.

That the prosecution of the petitioner is not in itself an unlawful process and there is no demonstration by the petitioner on the grounds advanced or evidence shown that any law has been contravened in the process hence prejudicial to the petitioner.

That the petitioner has not demonstrated the violation or threatened violation of their fundamental rights and the manner in which the rights have been violated.

That the allegations made in this petition are of a criminal nature which require to be investigated and anyone, if any, who is found culpable charged.

That there is no constitutional issue for the court’s determination.

The petitioner and the 2nd and 3rd respondent filed written submissions which they elected not to highlight. I shall refer to the arguments raised in the respective submissions in the course of the following analysis.

Analysis and Determination

The issue for determination in this petition is fairly straightforward: it is whether there was a violation of the petitioner’s rights under Articles 25(a), 28, 29(c),(d) and (f), 43, and 49 of the Constitution following her arrest and prosecution in Kibera Criminal Case No. 1755 of 2011 (later consolidated with Kibera Criminal Case No 1592 of 2011). The determination of this issue depends on the findings of the Court on the basis of the evidence presented before it in the oral and affidavit evidence of the parties.

The petitioner alleges violation of her right to dignity guaranteed under Article 28, and the protections contained in Article 29(c), (d) and (f) which state that:

29. Every person has the right to freedom and security of the person, which includes the right not to be—

(a)…

(b)…

(c) subjected to any form of violence from either public or private sources;

(d) subjected to torture in any manner, whether physical or psychological;

(e)…

(f) treated or punished in a cruel, inhuman or degrading manner.

She also alleges violation of her rights under Article 43, which protects socio-economic rights, including the right to health, and her rights as an arrested person guaranteed under Article 49.

As a party alleging violation of constitutional rights, the obligation placed on the petitioner is clear: she must demonstrate, with a reasonable degree of precision, the manner in which the provisions of the Constitution which she alleges have been violated with respect to her were violated-see Anarita Karimi Njeru vs R (1976-80) 1 KLR 1272and Trusted Society of Human Rights Alliance vs Attorney General & Others High Court Petition No. 229 of 2012.

What is the evidential basis of the petitioner’s claim? Essentially, there is no dispute on the facts. The petitioner was arrested on 21st May 2011 and charged with stealing. Her case was consolidated with that of Victor Mutachi who, from the statements annexed to the affidavit of PC Muraya and which were not challenged either by way of a supplementary affidavit or cross-examination, assisted the petitioner in the alleged act of theft. From the submissions filed on her behalf dated 22nd June 2015, the criminal case against her had been heard on merit and was scheduled for judgment on 13th July 2015.

The petitioner has made various allegations against the respondents, including that she was physically assaulted during her arrest, and that she was sexually assaulted when she was being transported to Hardy Police Station and when she was held at the station. The 2nd and 3rd respondents have admitted that the petitioner suffered some injuries to her head during her arrest as they had to use reasonable force as she was resisting arrest.

The petitioner produced a report from Nairobi Women Hospital dated 13th June 2011. It indicates that she visited the hospital on 13th June 2011, while the petitioner testified that she sought medical assistance two months after her arrest and, therefore, after the alleged assault. Although the petitioner sought and was granted several opportunities to present medical evidence to establish her claim, she did not. She also alleged in her oral evidence that she had reported the assault against her at the Lang’ata Women Hospital. She did not, however, have any documents to support this allegation, nor had she made any mention of it in her affidavit in support of the petition. What the Court is left with is the somewhat contradictory evidence of the petitioner with regard to the alleged assault against her.

Against this is the evidence of the 2nd and 3rd respondents contained in the affidavit of PC Muraya and the various statements annexed thereto. The deponent also testified in Court, and there was no serious challenge of his evidence in cross-examination. There is annexed to his affidavit an investigations diary, beginning from the date the crime in question was committed the 8th of May 2011, and showing the various steps taken by the respondents in pursuing the petitioner until her arrest on 21st May 2011. The entries were not challenged by the petitioner in the course of cross examination.

The petitioner has argued in her submissions that she is entitled to compensation for the violation of her rights perpetrated by the respondents, and has cited various authorities which I need not go into. While the law relied on by the petitioner in the written submissions is not in dispute, it is not supported by the facts presented before the Court.

I must therefore agree with the respondents in this case that the petitioner’s claim discloses too many inconsistencies, unlike the evidence presented by the respondents’ witness which impressed the Court as forthright and consistent. One can therefore understand the respondents’ claim that the present petition and the allegations of rights violations were fabricated with the intention of preventing or weakening the criminal prosecution against the petitioner.

At any rate, I find that the petition is without any merit, and it is hereby dismissed with costs to the respondents.

Dated, Delivered and Signed at Nairobi this 28th day of October 2015

MUMBI NGUGI

JUDGE

No appearance for the petitioner.

Mr. Obura instructed by the firm of Ngaywa, Ngigi & Kibet & Co. Advocates for the 1st respondent.

Mr. Murang’a instructed by the Director of Public Prosecutions for the 2nd and 3rd respondent