[2018] KEHC 4497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

H.C.C.C NO. 17 OF 2013

(CONSOLIDATED WITH HCC NO. 18/13 & HCC 32/13)

GEOFFREY MURIUKI MURAGE.........................................................PLAINTIFF

V E R S U S

KIRINYAGA DISTRICT FARMERS SACCO............................1ST DEFENDANT

ATTORNEY GENERAL OF THE REPUBLIC OF KENYA....2ND DEFENDANT

JUDGMENT

1. This Judgment relates to the following matters which were consolidated:

a) H.C.C.C NO. 17/2013 – Geoffrey Muriuki Murage –v- Kirinyaga District Farmers Sacco & The Attorney General.

b) H.C.C.C No. 18/2013 – Bernard Kamukere Rubani –v- Kirinyaga Farmers Sacco & The Attorney General.

c) H.C.C.C No. 31/2013 – Ephantus Njega George –v- Kirinyaga Farmers Sacco & The Attorney General.

d) H.C.C.C. No. 32/2013 – Elias Gatimu Kamunya –v- Kirinyaga Farmers Sacco & The Attorney General.

All the plaintiffs in these suits were seeking the following orders:-

a) Declaration that:

i) The plaintiffs’ right to be held in custody for more than 24 hours as set out under Section 72 (3) of the former constitution was violated.

ii) The right to be presumed innocent under the former Constitution was violated.

b) General damages for false imprisonment and malicious prosecution.

c) General damages for violation of their constitutional right.

2. By an order of this court issued on 15/11/2017 these cases were consolidated. Directions were given that the matters be disposed off by way of written submissions. For the plaintiffs submissions were filed by Jackline W. Kiragu for Magee Wa Magee & Company Advocates. For the 1st defendant, submissions were filed by Wangechi Munene while those of the 2nd defendant were filed by G. N. Muthami litigation counsel.

3. The facts of the case are that the plaintiffs were employees of the 1st defendant. On 2/1/2002, representatives of the 1st defendant made a false report concerning the plaintiffs at Kerugoya

Police Station prompting the arrest of the Plaintiffs on 9/1/2002. They were detained at the Police Station upto 14/1/2002 when they were presented at the Principal Magistrate’s Court at Kerugoya. Criminal charges of conspiracy to defraud, forgery contrary to Section 349 of the Penal Code, stealing by servant & stealing by clerks were preferred. The plaintiffs were held in police custody for five days before they were charged in court. The plaintiffs’ claim is based on violation of their constitutional rights under Section 72(3) of the former Constitution. It is alleged that by detaining the Plaintiffs in custody for more than 24 hours the second defendant violated their rights. They therefore claim damages.

4. The 1st defendant denied the allegations terming them as baseless and unfounded.

5. As for the 2nd defendant he denies the allegations and puts the plaintiff to strict proof.

6. Issues Arising:

1) Whether the Plaintiffs are entitled to a declaration that their rights not to be held in custody for more than 24 hours as set out under Section 72(3) of the Former Constitution were violated.

2) Whether the plaintiffs are entitled to general damages for the violation of their Constitutional Rights.

7. In Civil Suit No. 17/2013 the second defendant raised a preliminary objection on the grounds that the plaintiffs’ suit offend the mandatory provisions of Section 3(1) of the Public Authorities Act Cap 39 Laws of Kenya and termed the suit as none starter, incurably bad in law and an abuse of the process of the court. That the 2nd defendant would be highly prejudiced unless the Preliminary Objection was heard and determined in the first instance. In a ruling dated 18/5/2015 Justice Limo found that the claim on malicious prosecution which was prayer (b) in the plaint was time barred by dint of Section 3(1) Public Authority Limitation Act Cap 39and ordered the other prayers to proceed to full hearing and struck out the prayer with costs. The ruling applies in the suits in which this Judgment relates.

8. With regard to the first issue. There is no dispute that the plaintiffs were arrested on 9/1/02 and detained in police custody upto 14/1/02, a period of five days before they were arraigned in court. Section 72(3) of the Former Constitution provides:

A person who is arrested or detained –

a) Upon reasonable suspicion of his having committed or being about to commit, a criminal offence;

b) and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before court within twenty four hours of his arrest or from the commencement of his detention; or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging the provisions of this subsection have been complied with.

Based on this provision it is clear that since the plaintiffs were kept in custody for more than 24 hours, their rights were violated. The 2nd defendant had to discharge the burden of proving that the plaintiffs were arraigned in court as soon as it was reasonably practicable.

9. In his submission the 2nd defendant submits that though the charge sheet presented in court shows that the plaintiffs were arrested on 9/1/02 it is not certain when the plaintiffs were presented before court to take plea. He submits that the plaintiffs were presented in court as soon as reasonably practicable. Secondly it is submitted that the charges were complex and required the police to conduct proper investigations, gather credible documentary evidence relating to the complaint as well as interview and record statements from witnesses. They submit that if there was delay, it was not malicious and the plaintiff’s rights were not violated.

10. The plaintiffs have stated that they were detained for five days. The 2nd respondent cannot shift the burden of proving that they were detained in contravention of their rights. The burden does not shift. It is for the 2nd defendant to prove that the plaintiffs were taken to court within 24 hours or within the reasonable time practicable. No evidence was tendered by the 2nd defendant to refute the claim that the plaintiffs were kept in custody for more than 24 hours. The defence of the 2nd defendant was a general denial. The allegation that the matter was complex does not persuade me to find that the 2nd respondent produced the plaintiffs within a reasonable time. This is because a period of five days was unreasonable. Where a person is detained for more than 24 hours, the 2nd defendant can show that he was presented in court within the reasonable time practicable. This was dealt with by the Court of Appeal in the case of Dominic Mutie –v- Republic Nairobi Criminal Appeal No. 217/2005 (unreported) where the Court stated while dealing with Section 72(3) of the Former Constitution.

“A plain reading of that provision of the Constitution as a whole shows that the provision requires that a person arrested upon reasonable suspicion of having committed or about to commit a criminal offence, among other things, has to be brought before the court as soon as is reasonably practicable (emphasis ours). The section further provides that where such a person is not taken to court within either the twenty-four hours for non-capital offence or fourteen days for capital offence as stipulated by law, then the burden of proving that such a person has been brought to court as soon as is reasonably practicable rests on the person who alleges that the Constitution has been complied with. Thus, where an accused person charged with a non-capital offence brought before the court after twenty-four hours or after fourteen days where he is charged witha capital offence complains that the provisions of the Constitution has not been complied with, the prosecution can still prove that he was brought to court as soon as is reasonably practicable notwithstanding, that he was not brought to court within the time stipulated by the Constitution. In our view, the mere fact that an accused person is brought to court either after the twenty-four hours or the fourteen days, as the case may be, stipulated in the Constitution does not ipso facto prove a breach of the Constitution. The wording of section 72 (3) above is in our view clear that each case has to be considered on the basis of its peculiar facts and circumstances. In deciding whether there has been a breach of the above provision the Court must act on evidence.

Additionally, a careful reading of section 84 (1) of the Constitution clearly suggests that there has to be an allegation of breach before the Court can be called upon to make a determination of the issue which allegation has to be raised within the earliest opportunity.”

In Julius Kamau Mbugua, the Court maintained, “By section 72(3) a suspect so arrested or detained and who is not thereafter released had to be taken to court as soon as reasonably practicable and if he is not taken within 24 hours, if arrested or detained for non capital offence or within 14 days, if he is arrested for capital offence, then the section cast a burden on a person who alleges that any detention beyond the specified period is still constitutional, of proving that the suspect was still brought before the court as soon as is reasonably practicable.”

The second respondent has not shown that the period of five days was the reasonably practicable time. Failure to produce them in court was clearly a violation of their rights. The burden was not discharged. This has been stated by the Court of Appeal in various binding decisions.

In Julius Kamau Mbugua v Republic [2010] eKLR

The appellant was unlawfully kept in police custody for 107 days before he was charged in court. The Court of Appeal, in relation to the construction of Section 72(3), stated that;

By section 72(3)(b) a suspect so arrested or detained and who is not thereafter released had to be taken to court as soon as reasonably practicable and if he is not taken within 24 hours, if arrested or detained for non-capital offence or within 14 days, if he is arrested for capital offence, then the section cast a burden on a person who alleges that any detention beyond the specified period is still constitutional, of proving that the suspect was still brought before the court as soon as is reasonably practicable.

Paul Mwangi Murunga v Republic [2008] eKLR

The Court of Appeal held that the burden is on the prosecution to explain the delay and listed examples of reasonable explanations as follows;

The prosecuting authorities themselves know the time and date when an accused was arrested. They also know when the arrested person is taken to court and accordingly, they know or ought to know whether the arrested person has been in custody for more than the twenty four hours allowed in the case of ordinary offences and fourteen days in the case of capital offences. Under section 72(3) of the Constitution, the burden to explain the delay is on the prosecution….

In the case of ALBANUS MWASIA MUTUA VS. REPUBLIC, Criminal Appeal No. 120 of 2004, (unreported) the Court suggested some examples of what might amount to an acceptable explanation for the delay. It may be that upon arrest and on being taken to the police station the accused person fell ill, was taken to hospital and was admitted and kept there in excess of the period allowed. Or it may be that the accused person was arrested on a Friday evening and as our courts do not work on weekends and it being not possible to release the accused on bail, he is brought to court on the next working day. Or it may be that the court-house is far from the police station and the station vehicle broke down or had no fuel. These are no more than examples which would and can provide the prosecuting authorities with an explanation to enable them discharge the burden placed on them by section 72(3) of the Constitution. So long as the explanation proffered is reasonable and acceptable, no problem would arise. Again the court might well countenance a delay of say one or two days as not being inordinate and leave the matter at that.

The date the plaintiffs were arrested is not in dispute. Looking back to 2002, 9/1/02 was a Wednesday. They were charged in court on 14/01/02 which was a Monday. Despite the file having been destroyed by a fire, there is no other evidence showing that the plaintiffs were presented to court on any other date. I find that the plaintiffs were detained for five days in contravention of the Constitution and in violation of the rights of the plaintiffs. I find that the rights of the plaintiffs under Section 72(3) of the Former Constitutionwere breached.

10. The second issue is whether the plaintiffs are entitled to damages. Under Section 72(6) of the Former Constitution it was provided:

“A person who is unlawfully arrested or detained by another person shall be entitled to compensation thereof from the other person.”

This means that there is remedy of damages available for a person who is detained or arrested unlawfully. They are therefore entitled to damages as they have proved that they were unlawfully detained. This was stated by the court of Appeal in the case of Julius Kamau Mbugua –v- R (2010) eKLR where it was stated:

“It is the function of the Government to ensure that the Citizens enjoy the right, the duty is specifically on the police where the suspect is in police custody. If by illustration, the police breach the right to personal liberty of the suspect by unreasonable detention in police custody there is a right to apply to the High Court for a wit of Habeas Corpus to secure the release ----------. In addition section 72(6) provided a remedy by way of damages to a person who is unlawfully arrested or detained.”

In Julius Kamau Mbugua v Republic [2010] eKLR

The Court of appeal stated the following in regard to breach of Section 72 (3)(b);

If by the time an accused person makes an application to the court, the right has already been breached, and the right can no longer be enjoyed, secured or enforced, as is invariably the case, then, the only appropriate remedy under Section 84 (1) would be an order for compensation for such breach. The rationale for prescribing monetary compensation in Section 72 (6) was that the person having already been unlawfully arrested or detained such unlawful arrest or detention cannot be undone and hence the breach can only be vindicated by damages. Again, we respectfully agree with Emukule, J. that breach of Section 72 (3) (b) entitles the aggrieved person to monetary compensation only.

11. The breach of the constitution and violation of tights entitles the party to general damages which are monetary to compensate for the harm caused. I have to consider who is liable to pay the damages. The 1st defendant made a report to the police. It had no control on the actions by the police. There was no wrong alleged against the 1st defendant. Kirinyaga District Farmers Sacco. It is the second defendant’s agents who violated the rights of the plaintiffs. I find no liability against the 1st defendant. The court of Appeal in the case of Abubaker Simba –v- Stephen N. Wambari(1994) eKLR stated:

Finally even if the appellant was arrested on a report made by the respondent, he cannot by any stretch of imagination be accused of having persuaded the police to keep the appellant in their custody for that period. If the Attorney General had been made a party to the suit he would have been obliged to explain the reason for confinement in police custody for 10 days before the appellant was produced in Court.

12. On the award of damages, the court determines what is appropriated based on the circumstances of the case. This was stated in the Court of Appeal in the case of Gitobu Imanyara 2 Others –v- Attorney General(2016) eKLR .

it seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is“appropriate and just”according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration. Public policy considerations is also important because it is not only the petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.

I have looked at persuasive decisions where damages have been awarded. In Lucas Omoto Wamari –v- Attorney General & Another 2014 eKLR, the Judge awarded Kshs 500,000/- to the petitioner who was detained for Twelve days.

- In David Muyoma Lwimbu –v- Attorney General (2013) eKLR where the petitioner was detained for Nine (9) days Kshs 10,000/- was awarded.

- In Salimu Kofia Chivui –v- Resident Magistrate Butali Law courts & Another (2012) eKLR where the petitioner was detained for a period of Five days, the Judge awarded Kshs 10,000/- as damages.

IN CONCLUSION:

1) I dismiss the case against the 1st defendant with costs.

2) The 2nd defendant is liable to compensate the plaintiffs for the violations.

3) I make a declaration that the plaintiffs’ rights as guaranteed under Section 72(3) of the Former Constitution of Kenya were violated.

4) I award the Plaintiffs Kshs 50,000/- each as general damages for the violation of their rights.

5) I award the plaintiffs the costs of the suit to be paid by 2nd defendant.

Dated at Kerugoya this 26th day of July 2018.

L. W. GITARI

JUDGE

Geoffrey Muriuki Murage – Present

Bernard Kamucere Rubara - Present

Elias Gatimu - Present

Ephantus Njega George – Present.

Mr. Ndegwa Advocate Holding Brief for M/s Wangechi for 1st Respondent.

2nd Respondent - Absent