[2022] KEHC 1460 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

CONSTITUTIONAL PETITION NO. E004 OF 2021

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND RIGHTS AND FREEDOMS PURSUANT TO ARTICLES 23, 47, 157, 165(3), 232, 258, 259 & 260 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE & PROCEDURE RULES 2013

AND

IN THE MATTER OF SECTIONS 176, 362, 364 OF THE CRIMINAL PROCEDURE CODE, CHAPTER 210 OF THE LAWS OF KENYA, 2010

AND

IN THE MATTER OF THE FAIR ADMINSTRATION ACTIONS ACT NO 4 OF 2015

AND

IN THE MATTER OF THE NATIONAL PROSECUTION POLICY

BETWEEN

CALVIN OUMA MAGARE& 18 OTHERS..........................................................................PETITIONERS

VERSES

THE DIRECTOR OF PUBLIC PROSECUTIONS.........................................................1ST RESPONDENT

THE ATTORNEY GENERAL..........................................................................................2ND RESPONDENT

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

THE CABINET SECRETARY, MINISTRY OF INTERIOR &CO-ORDINATION OF NATIONAL

GOVERNMENT...................................................................................................................4TH RESPONDENT

IBRAHIM WESONGA HERESE.......................................................................................5TH RESPONDENT

JUDGMENT

1. The Petitioners herein filed two petitions, one dated 30. 8.2021 and filed on the 31. 8.2021 and the other dated 24. 9.2021 and filed in court on the 1. 10. 2021. Both petitions are similar and seek the following orders:

a) A Declaration that the arrest of the petitioners as wrongful without any reason or probable cause, violated their constitutional rights as enshrined in the Constitution of Kenya.

b) A Declaration that the detention of the Petitioners for 16 days was unconstitutional right and freedom under article 27, 28, 28, 29, 31, 32, 33. 34, 35, 36, 38, 39, 40, 41, 47, 48, 49, 50 and 51 of the Constitution of Kenya 2010.

c) A Declaration that the trial of the Petitioners was malicious, illegal and unconstitutional as it violated the petitioners’ right under article 27, 28, 28, 29, 31, 32, 33. 34, 35, 36, 38, 39, 40, 41, 47, 48, 49, 50 and 51 of the Constitution of Kenya 2010.

d) That consequent upon the aforesaid declarations the petitioners be and are hereby granted punitive and exemplary damages.

e) The petitioners are granted special damages for court attendance and advocate’s costs.

f) Costs of the petition.

g) Interest on (d), (e) and (f) above.

2. The petition was supported by the affidavits of Joseph Oyondi Otengo and Erick Obare Odweyo both stated to be sworn on the 22. 9.2021.

3. It is the petitioners’ case that they were wrongfully arrested on the 15. 8.2018 on allegations that back on the 6. 2.2018, they set fire to the Police Line at Anyiko Administration Police Post leading to the burning of four houses valued at Kshs. 4 million. The petitioners aver that they were subsequently detained at Siaya Police Station for 2 days in congested and unhygienic police cells in utter violation of the Persons Deprived of Liberty Act No. 22 of 2014.

4. The petitioners further aver that they were arraigned in court on the 20. 8.2018 and charged with the offence of arson contrary to section 332 (a) of the Penal Code and were further detained for 14 more days at the instigation of the ODPP pending further investigations.

5. The petitioners thus aver that they were falsely accused and arrested and that no proper investigations were carried out and that the respondents adduced fabricated evidence against them with the intent of having them jailed.

6. It is the petitioners’ case that they were acquitted by the trial court that found that the prosecution had failed to establish a prima facie case against them. The petitioners aver that as a result of their arrest and detention, they suffered fear and anxiety and severe psychiatric trauma.

7. The Office of the Attorney General entered appearance vide their memorandum dated the 22. 10. 2021 on their own behalf as well as for the 3rd and 4th respondents. The 2nd respondent on the 17. 11. 2021 filed Grounds of Opposition to the petition which grounds were dated 16. 11. 2021 stating as follows:

The petition herein is based on claims that amount to the tort of malicious prosecution. The same being tort and having allegedly occurred on 15. 8.2018 is statute barred pursuant to section 3 of the Public Authorities Limitation Act.

The claim herein is for malicious prosecution cloaked under the guise of a constitutional petition in a bid to circumvent the statute of limitation.

The court lacks jurisdiction because the claims are based on tortious acts and the lower court is quite capable of handling the matter.

That a constitutional petition should not be resorted to where the law avails other avenues.

The claim fails to meet the threshold for bringing a constitutional petition as set by the Anarita Karimi Case and is therefore an abuse of court process.

8. On the 25. 11. 2021, the 2nd respondent filed an affidavit sworn by the 5th respondent on the 13. 11. 2021 in which he averred that he was the Assistant Chief of Anyiko sub location where the petitioners hailed from. He further stated that the 12th and 16th petitioners had since passed on.

9. The 5th respondent contended that on the 6. 2.2017, he was in the office adjacent to the Police Post when he heard a commotion coming from a crowd that had gathered and were shouting that the Police had killed one of their own who had been arrested at a chang’aa den. He deposed that the crowd were armed with petrol cans and stones and that they intended to burn the Police station and his office.

10. He further deposed that he identified the petitioners, who were personally known to him, amongst the crowd. That he managed to call the area chief, DCIO and Assistant County Commissioner and that after three hours, the police managed to quell the crowd after a violent exchange that led to the torching of 4 houses and the arrest of the petitioners herein.

11. It was deposed that there was just and reasonable cause for the arrest of the petitioners and that further, that their incarceration was lawful as their bond terms were suspended by the court on account that they might have tampered with witnesses.

12. He further deposed that the petitioners’ claim was time barred as they were acquitted on the 18. 12. 2018 and had until 18. 12. 2019 to institute their suit against the public institution and that the instant petition was meant to circumvent statute. He also deposed that the petitioners had sued him in his personal capacity which was against the Government Proceedings Act.

13. The parties agreed to canvass the petition by way of written submissions.

The Petitioners’ Submissions

14. In their submissions, the petitioners asserted that the petition was not time barred as the Constitution does not provide for time limits for filing constitutional references. Reliance was placed on the cases of Dominic Arony Amolo v Attorney General HC Misc. 494 OF 2003 (unreported), Wachira Waheire v Attorney General [2010] eKLRand Otieno Mak’ Onyango v Attorney General & Another Nairobi HCCC No. 845 of 2003 (Unreported) and James Kanyiita Nderitu c Attorney General & Another, Nairobi Petition No. 180 of 2011 where the courts have consistently held that there is no limitation with respect to Constitutional petitions alleging violation of fundamental rights.

15. It was further submitted that there was no prejudice that had been occasioned to the respondent by the filing of the present claim and that the delay in filing was occasioned by financial constraint to engage an advocate immediately after acquittal and lack of proper legal knowledge which was cured after a legal clinic was held in the area. It was submitted that allowing the instant petition would serve the petitioners with justice and heal them from post-traumatic stress disorder.

16. As to whether the petitioners’ rights were violated, it was submitted that the averments by the petitioners were unchallenged by the Attorney General in his replying affidavit. Reliance was placed on the case of Rumba Kinuthia v Attorney General, Nairobi HCCC No. 1408 of 2004 where it was stated that the specific denial of any facts or demand for disclosure of the facts averred in the supporting affidavits would mean that those facts remain unchallenged, unrebutted and uncontroverted.

17. The petitioners submitted that arresting them and subsequently detaining them for another 14 days to complete investigation was a clear indication that the petitioners were arrested before the police established a probable cause.

18. The petitioners submitted that the trial magistrate ruled that a prima facie case had not been made against them and thus acquitted them of the offence of arson. They further submitted that their arrest and prosecution was ill motivated, dishonest and unreasonable as none of the witnesses saw the accused person set fire so as to link them with the criminal act. It was further submitted that the petitioners were deprived of their fundamental freedoms and rights while in police custody and that they suffered psychiatric trauma.

19. As to whether the petitioners were entitled to punitive, exemplary and special damages, it was submitted that they suffered loss in paying the advocate’s fees, transport and accommodation while attending court and that they also suffered severe psychiatric trauma, fear and anxiety for prosecution and imprisonment for a crime they never committed. They further submitted that they still undergo stigma in their village and that their reputation had diminished.

The 2nd, 3rd, 4th & 5th Respondents’ Submissions

20. It was submitted that the matters arising in the instant petition are normally prosecuted through a civil claim, which claim for malicious prosecution is time barred and is couched as a petition by the petitioners.

21. The respondents further submitted that the petition as argued is not sustainable as it is one for general and exemplary damages and that therefore the petitioners needed to lead oral evidence to prove their claim. Reliance was placed on the case of Dickson Ambuye Chebuye Ambeyi v National Police Service & Another [2020] eKLR where the court stated that in any claim for general damages, the party claiming must formally prove their claim and that couching such a claim as a constitutional suit does not provide the parties with a shortcut in cases of this nature being claims for unlawful arrest, false imprisonment and malicious prosecution all of which are torts.

22. It was further submitted that the tort of malicious prosecution by its very nature requires deference to the court where the charges complained of were actually brought hence the issue is one of abuse of process. Reliance was placed on the case of Mbowa v East Mengo Adminstration [1972] EA 352.

23. As to whether the petitioners’ claim satisfies the criteria set for the tort of malicious prosecution, it was submitted that no evidence was led to demonstrate that the actions of the respondents were actuated by malice. Further, that the 5th respondent’s replying affidavit demonstrated that the petitioners were arrested on reasonable grounds and that there were sufficient facts to sustain a charge against a cognizable offence.

24. It was submitted that acquittal on a criminal charge was not sufficient basis to ground a suit for malicious prosecution as was held in the case of Nzoia Sugar Company Limited v Fungutuli [1988] eKLR.

25. It was further submitted by the respondents that without showing the court that there was malice, the petition does not meet the threshold of a constitutional petition as espoused in the case of Anarita Karimi Njeru v Republic [1979] eKLRwhere it was held that a petition must satisfy the evidential burden that a specific right exists and which right has been violated or restricted, besides pleading the same with reasonable particularity and precision.

Analysis & Determination

26. I have considered the petition herein as well as the submissions by all parties’ counsel and I find the following issues flowing for determination:

a)Whether the court has jurisdiction to entertain this petition

b)Whether the claim is time barred

c)Whether the petition raises any constitutional issues

d)Whether the petitioners proved their claims to warrant grant of reliefs sought

On whether the court has jurisdiction to entertain this petition

27. It was the respondents’ submission that the instant petition is an abuse of the court process as it was a claim for malicious prosecution cloaked under the guise of a constitutional petition in a bid to circumvent the statute of limitation whereas the law sets down the procedure for seeking redress in this case being by way of plaint for compensation or the torts of false imprisonment, unlawful arrest and malicious prosecution. In other words, the respondents contend that this court lacks jurisdiction to entertain the instant petition.

28. I have considered the above contention. Under Article 22 of the Constitution:

‘22(1) Every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied. violated or infringed, or is threatened.

(2) In addition to a person acting in their own interest, court proceedings under clause may be instituted by –

a) A person acting on behalf of another person who cannot act in their own name;

b) A person acting as a member of, or in the interest of a group or class of persons;

c) A person acting in the public interest; or

d) An Association acting in the interest of one or more of its members.’

29. From the above provisions of the Constitution, it is clear that this Court has the requisite jurisdiction at the first instance to entertain this petition. The petitioners have pleaded what they allege to be violations against their guaranteed rights under the Constitution and they cited the specific constitutional provisions. As to whether those alleged violations are established is what this court will be determining. I am fortified by the decision rendered in A.O.O & 6 Others v Attorney General & Another [2017] eKLRwhere the High Court held that:

“Article 165 (3) (d) (i) & (ii) of the Constitution vests power to the High Court to hear any question respecting the interpretation of the Constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the constitution and also the question whether anything said to be done under the authority of the constitution or of any law is inconsistent with, or in contravention of, the constitution. An unconstitutional statute is not law; and more important judicial function includes the power to determine and apply the law, and this necessarily includes the power to determine the legality of statutes. The judiciary has a special role in our system with respect to constitutional interpretation. Courts are bound by the Constitution and must interpret it when a dispute so requires.”

Whether the claim is time barred

30. It is the respondents’ contention that the instant petition is time statute barred as it has been filed more than one year after the petitioners were acquitted. The petitioners aver that this is a constitutional petition that cannot be time barred. Further, they assert that they had no legal advise, being people of no means, to know when to institute suit following their acquittal.

31. Section 3(1) of the Public Authorities Limitation Act, provides that:

"No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.”

32. In Jacob Juma & another v Commissioner of Police & Another Civil Suit 661 of 2007 [ 2013] eKLR Odunga J opined that time for the purposes of limitation must begin to run as from the date when the Plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. Thus the damage to the plaintiff results at a stage when the criminal proceedings come to an end in his favour.

33. In the instant case, the petitioners who were jointly charged with the offence of arson contrary to section 332 (a) of the Penal Code were acquitted under Section 210 of the Criminal Procedure Code on the 18th December 2018 and they filed the instant petition on the 31st August 2021, 1 year and 8 months later. The petitioners then filed the similar petition again on the 1. 10. 2021 which is 1 year and 10 months after their acquittal.

34. The petitioners deny that their claim herein is couched as civil claim. They claim that a constitutional petition is not affected by the law of limitation to institute action. No doubt, the claim is a constitutional petition and not a civil suit and whether it is couched as a constitutional petition when it is a civil suit will be determined at a later stage. Had it been brought as acivil suit, the same could have been statute barred as stipulate din section 3 (1) of the Public Authorities Limitation Act.

35. Therefore, as to whether the instant petition is time barred, the question of limitation of time in regard to allegations of breach of human rights and fundamental freedoms has in many cases been raised by the state and in the case of Joan Akinyi Kaba Sellah and 2 others vs Attorney General, Petition No. 41 of 2014, the learned judge observed interaliathat in a line of cases such as Dominic Arony Amollo vs Attorney General, Nairobi High Court Misc. Civil Case No. 1184 of 2003 (OS) 2010 eKLR, Otieno Mak’ Onyango vs Attorney General and another, Nairobi HCCC No. 845 of 2003,(unreported), courts have consistently held that there is no limitation with respect to constitutional petitions alleging violation of fundamental rights.

36. Further in James Kanyiitasupra, contrary to the submissions by the petitioners, the court held that although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under Section 84 of the constitution is entitled to consider whether there has been inordinate delay in lodging the claim. The court further stated that the court is obliged to consider whether justice will be served by permitting a respondent whether an individual or the state, in any of its manifestations, should be vexed by an otherwise stale claim.

37. In the present case, it is submitted on behalf of the petitioners that the delay in instituting the instant suit was because of the lack of the requisite legal knowledge as well as financial constraints in getting an advocate.

38. In Mombasa Civil Case No. 128 of 1962, Rawal v Rawal (1990) KLR 275 the learned judge stated thus:

“The effect of any limitation enactment is to prevent a plaintiff from prosecuting state claims on the one hand and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time. It is not to extinguish claims”

39. The point was further successfully made in Abraham Kaisha Kanzila alias Moses Savala Keya t/a Kapco machinery services and Milamo investments limited vs Government Central Bank of Kenya and 2 others, Misc. Civil Application 1759 of 2004 where the court observed:

“In my view failure by a constitutional court to recognize general principles of law including, limitation expressed in the constitution would lead to legal awarding or crisis. It would also trivialize the constitutional jurisdiction in that Applicants would in some cases ignore the enforcement of their rights under the general principles of law in order to convert their subsequent grievance into a ‘constitutional issue’ after the expiry of the prescribed limitation periods”.

40. I have considered the reasons advanced by the petitioners for the delay in bringing the instant suit, though ignorance of the law is no defense I acknowledge the circumstance of the petitioners in that they may have not been exposed to the avenue of seeking remedy from the court for alleged malicious prosecution and wrongful arrest. Indeed, it is noteworthy that they admit that this option came to their attention vide a legal aid and awareness that was organized in the area.

41. In the circumstances it is my opinion that the reasons advanced by the petitioners in this matter in which they allege gross violation of their human rights and fundamental freedoms suffice for the court to find that the petition is not time barred.

Whether the Petition raises any constitutional questions

42. The petitioners herein allege that their rights under Articles 27, 28, 28, 29, 31, 32, 33. 34, 35, 36, 38, 39, 40, 41, 47, 48, 49, 50 and 51 of the Constitution of Kenya 2010 have been infringed by the respondents. In other words, the Petitioners seek the intervention of this Court on the basis that the Respondent has infringed upon their rights and fundamental freedoms guaranteed under the Bill of Rights.

43. The Petition, therefore, raises pure and serious constitutional issues for consideration by this Court. This Court is duty bound under Article 165(3) of the Constitution to determine any question as to whether a right or fundamental freedom in a Bill of Rights has been infringed, denied, violated or threatened.

Whether the petitioners proved their claims to warrant grant of the reliefs sought

44. The question being posed to this court is to examine whether the elements necessary to sustain a claim for unlawful arrest, detention and malicious prosecution have been met. In Sylvanus Okiya Ongoro v Director of Criminal Investigations & 4 others[2020] eKLR,it was stated:

“103. What I gather the petitioner to be complaining about is that his prosecution was malicious as it was unjustified.

104. The principles governing a claim founded on malicious prosecution were laid down by Cotran, J in Murunga vs. Attorney General (1979) KLR, 138 as follows: -

(a) The Plaintiff must show that the prosecution was instituted by the Defendant, or by someone for whose acts he is responsible;

(b) The Plaintiff must show that the prosecution terminated in his favour;

(c) The Plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause;

(d) He must also show that the prosecution was actuated by malice.”

45. These elements were summarized by the former East Africa Court of Appeal in Mbowa supra as follows:

“The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action.”

46. Accordingly, a party who claims that he was unlawfully arrested and falsely imprisoned and or maliciously prosecuted, bears the burden of proving that the arrest had no basis in law at all. It will not be enough for him to merely state that the arrest was unlawful. Similarly, an acquittal alone cannot amount to proof of malice. There must be something more than just acquittal. In the case of Nzoia Sugar Company Limited supra, the Court of Appeal observed:

“It is trite learning that acquittal, per se, on a criminal case charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant. But there must be evidence of spite in one of its servants that can be attributed to the company.”

47. From the above decision, it is clear that for this petition to succeed, the petitioners have to prove that there was malice on the part of the respondents and the interested parties. The question is whether malice has been proved, on a balance of probabilities. The burden of proof lies on he who alleges.

48. The petitioners laid basis of their petition for malicious prosecution on infringement of Articles 27, 28, 29, 31, 32, 33, 34, 35, 36, 38, 39,40, 41, 47,49, 50 and 51 of the Constitution of Kenya 2010.

49. It is trite law that the burden of proving violation or threat of violation is upon the Petitioners as was established inAnarita Karimi Njeru (supra) and reiterated by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. In addition, it is also settled that the Petitioners must patently express the manner in which the Respondents have violated their rights as was stated in Matiba v Attorney General [1990] KLR 666.

50. In this petition, it is the petitioners’ case that they were wrongfully arrested as a result of the chaos that erupted at Anyiko Adminstration Police Post and that they were subsequently prosecuted. The petitioners aver that their acquittal was evidence that they were unlawfully arrested and maliciously prosecuted. The petitioners further stated that they were unlawfully detained for 16 days.

51. The evidence before the trial court as adduced by PW1, the 5th respondent herein was that he saw some of the petitioners herein in the crowd that was armed with stones and that they torched the houses at the Administration Police Post. Apparently, this is the evidence which the police based their investigations, arrest and subsequent prosecution of the petitioners herein with the offence of arson.

52. The learned trial magistrate in his ruling on no case to answer rendered on the 18. 12. 2018 found that the prosecution had failed to establish a prima facie case against the petitioners herein for them to be placed on their defence. He acquitted the petitioners.

53. The question this court is invited to answer is whether the petitioners have demonstrated that the police investigations and the subsequent prosecution of the petitioners was accentuated by malice. From the lower court proceedings, the by the 5th respondent was that he saw some of the petitioners in the crowd that attacked the police post.

54. It is trite that an acquittal, per se, on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved against the prosecutor. There must be evidence of spite. In the case of Jediel Nyaga v Silas Mucheke 1987 (CA No. 59 of 1987) the Court of Appeal again stated that:

“The appellant having reported to the police about the respondent’s action of damaging his crops, the police took over the matter to investigate the respondent for a possible offence … Once the appellant gave the report, he ceased to have anything to do with the matter.”

55. And in the case of Robert Okeri Ombaka v Central Bank of Kenya [2015]) eKLR, the Court of Appeal observed that:

“In this appeal there is no evidence that the respondent made a “false” report or that the it was actuated by “malice”, or that his prosecution was brought “without reasonable or probable cause”. That a suspect was acquitted of a criminal case is not a ground for filling a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”

56. From the affidavit evidence adduced herein, it is clear that the complainant leading to the arrest and prosecution of the petitioners was an alleged arson as testified by the 5th respondent hat he saw the petitioners in the crowd that caused the chaos at the Police post.

57. I find no material on record to support the finding by the trial court that PW1, the 5th respondent gave a contradicting testimony regarding the presence of the petitioners being part of the crowd. His testimony was clear and uncontroverted even during cross examination. It follows that the petitioners had to prove malice in the institution of the criminal case against them which from the affidavit evidence, they have not demonstrated on a balance of probabilities. In Gwagilo v Attorney General [2002] 2 EA 381 it was heldinteralia that malice in the context of malicious prosecution is an intent to use the legal process for some other purpose than its legally appointed and appropriate purpose and the appellant could prove malice by showing for instance that the prosecution did not honestly believe in the case which they were making, that there was no evidence at all upon which a reasonable tribunal could convict and that the prosecution was mounted on a wrong motive and show that motive.

58. Have the petitioners proved these essential ingredients of malicious prosecution being malice and reasonable and probable cause? I find that no material was placed before this court to establish malice. There is also no evidence that the prosecution of the petitioners was undertaken without any reasonable probable cause.

59. The petitioners further pleaded that they were detained for 16 days thus infringing on their constitutional rights and freedoms. The law regarding the arrest and detention can be found in the Criminal Procedure Code as well as the National Police Service Act.

60. Section 29 of the Criminal Procedure Code provides for an arrest without warrant by a police officer in the following terms:

“29. Arrest by police officer without warrantA police officer may, without an order from a magistrate and without a warrant, arrest—

(a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence;”

61. Section 36 of the Criminal Procedure Code relates to detention after an arrest without warrant and stipulates that:

“36. Detention of persons arrested without warrant

When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable:

Provided that an officer in charge of a police station may release a person arrested on suspicion on a charge of committing an offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.”

62. Section 58 of the National Police Service Act gives a police officer power to arrest without warrant in these terms:

“58. Power to arrest without a warrant

Subject to Article 49 of the Constitution, a police officer may without a warrant, arrest a person—

(a)…

(b)…

(c) whom the police officer suspects on reasonable grounds of havingcommitted a cognizable offence;

(d) who commits a breach of the peace in the presence of the police office.”

63. From the affidavit evidence adduced herein, the charge sheet brought against them details that they were arrested for the offence of arson without a warrant and that the complainant was the Republic through Anyiko Administration Police Post.

64. the question is, whether in the circumstances, that arrest was unlawful resulting in false arrest and detention of the Petitioners. On what constitutes a false arrest, the Court in Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLRheld that:

“False arrest which is a civil wrong consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another person purporting to act according to the law. The term false arrest is sometimes used interchangeably with the tort of false imprisonment, and a false arrest is one method of committing a false imprisonment. A false arrest must be perpetuated by one who asserts that he or she is acting pursuant to legal authority, whereas a false imprisonment is any unlawful confinement. Thus, where a police officer arrests a person without probable cause or reasonable basis, the officer is said to have committed a tort of false arrest and confinement. Thus, false imprisonment may be defined as an act of the defendant which causes the unlawful confinement of the plaintiff. False imprisonment is an intentional tort.”

65. On the other hand, a determination on whether or not there is false imprisonment is predicated on the circumstances of each case. The learned judge in the case of Daniel Waweru (supra), adopted the holding in Jorgensen v Pennsylvania R.R., 38 N.J Super 317{App. Div. 1955} where it was held that: “The gist of an action for false imprisonment is unlawful detention, without more.”

66. As earlier stated, the evidence adduced before the trial court was that the petitioners were identified by the 5th respondent as being among the crowd that caused the chaos at Anyiko AP post. The trial court record further reveals that the petitioners were denied bond and detained for 14 days by the trial court after an application by the state and on grounds that they were likely to interfere with witnesses in the case. I observe that the petitioners were released on bond after the 14 days lapsed.

67. From the evidence adduced in this petition which is by way of affidavit evidence, I am unable to find that the petitioners have shown that their arrest was through malice or was unlawful. On the contrary, based on the evidence adduced, I am persuaded that their arrest and detention during part of the trial was lawful.

68. For the above reasons, I find and hold that the instant petition lacks merit as a result of the petitioners’ failure to prove their claim of malicious prosecution and unlawful arrest and detention. I further find that the petitioners have not proved that their arrest, detention and prosecution was in violation of their constitutional rights as guaranteed in the Articles of the Constitution as cited. Accordingly, the petition is found to be devoid of merit. The orders sought in the petition being declarations as well as punitive and special damages are declined and dismissed.

69. Each party to bear their own costs of the petition.

70. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF MARCH, 2022

R.E. ABURILI

JUDGE