[2013] KEHC 2193 (KLR)
The court found that the applicant's rights under Article 49(1)(f) of the Constitution were violated when she was detained at Kayole Police Station for a period exceeding the constitutionally permitted duration. The violation was admitted by the State, and there was no evidence of mistreatment, torture, or malicious...
Source-derived case information.
- Citation
- [2013] KEHC 2193 (KLR)
- Parties
- Applicant: Carolyne Murugi Ndwiga; Respondent: The Attorney General; Respondent: The Hon. The Chief Magistrate, Makadara; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 290 of 2013
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Petition allowed in part; declaration of rights violation and award of damages and costs to applicant.
- Legal Topics
- Unlawful Detention, Constitutional Remedies, Damages for Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carolyne Murugi Ndwiga
Applicant
The Attorney General
Respondent
The Hon. The Chief Magistrate, Makadara
Respondent
Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant's constitutional rights under Article 49(1)(f) were violated by being held in police custody beyond the permitted period.
- 2 What reliefs or remedies are appropriate for the admitted violation of constitutional rights.
Ratio Decidendi
The court found that the applicant's rights under Article 49(1)(f) of the Constitution were violated when she was detained at Kayole Police Station for a period exceeding the constitutionally permitted duration. The violation was admitted by the State, and there was no evidence of mistreatment, torture, or malicious intent. The court exercised its discretion to award general damages as a remedy for the violation, considering the absence of aggravating factors and the range of awards in comparable cases. The court determined that an award of Kshs. 15,000.00 was appropriate as general damages, and further ordered costs of Kshs. 10,000.00 to be paid by the 1st respondent on behalf of the...
Court Disposition
Petition allowed in part; declaration of rights violation and award of damages and costs to applicant.
Orders
- Declaration that the applicant's rights under Article 49(1)(f) were violated during her detention at Kayole Police Station from 14th April 2013 to 17th April 2013.
- Award of Kshs. 15,000.00 as general damages to the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. APPL. NO. 290 OF 2013
BETWEEN
CAROLYNE MURUGI NDWIGA…………...........….. APPLICANT
AND
THE ATTORNEY GENERAL ……………….….1ST RESPONDENT
THE HON. THE CHIEF MAGISTRATE,
MAKADARA……………………………………..2ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS …3RD RESPONDENT
JUDGMENT
The petitioner has moved the court by way of a petition dated 7th March 2013 to vindicate her rights which were violated as a result of her incarceration in police custody at Kayole Police Station from 14th April 2013 to 17th April 2013. The State does not deny the violation which is a breach of Article 49 of the Constitution as she was kept in police custody for a period longer than that permitted by the Constitution. The petitioner has now been charged before a court for the offence of Malicious Damage to Property contrary to section 339(1) of the Penal Code.
As the pre-trial violation is admitted, the only issue for determination is what relief should be granted to in the circumstances. A vindication of the right by an appropriate declaration is one of the remedies the Court can give under Article 23 of the Constitution. Damages are also a remedy. Damages to be awarded are very much at large and within the court’s discretion. The petitioner’s advocate has cited the sum of Kshs. 500,000. 00 but I think is inordinate given that in cases where there is prolonged detention accompanied by torture, cruel and inhuman treatment, the court has awarded sums ranging from Kshs. 250,000/= to 2 Million.
In this case the violation was admittedly not accompanied by mistreatment. The petitioner was granted police bail at the police station which she could not raise and the action was neither deliberate nor malicious. In view of the violation I make the following orders;
I declare that the petitioner rights were violated contrary to Article 49 (1)(f) when she was held at Kayole Police Station from 14th April 2013 to 17th April 2013.
I award the petitioner the sum of Kshs 15,000. 00 as general damages.
The costs of the case assessed at Kshs 10,000. 00 to be paid by the 1st respondent on behalf of the State.
DATEDandDELIVERED at NAIROBIthis 23rd day of September 2013
D.S. MAJANJA
JUDGE
Mr Mbuthia instructed by B. N. Mbuthia and Company Advocates for the petitioner.
Ms Spira, Litigation Counsel, instructed by the Office of the Director of Public Prosecutions.