[2017] KEHC 1115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT GARISSA

PETITION NO. 10 OF 2016

HASSAN MAALIM MOHAMED............................................PETITIONER

VERSUS

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

INSPECTOR GENERAL OF POLICE........................2ND RESPONDENT

DIRECTOR OF CRIMINAL INVESTIGATION............3RD RESPONDENT

DEPARTMENT OF DEFENCE.....................................4RD RESPONDENT

ATTORNEY GENERAL................................................5TH RESPONDENT

JUDGEMENT

1. This is a petition dated 3rd November, 2016 and filed on the same date under Article 22 (1) , 23(1), and 165 (3) (b) of the Constitution of Kenya 2010.

2. The petitioner Hassan Maalim Mohamed seeks for substantive orders as follows:-

1. A declaration that his fundamental rights were denied, violated, and infringed by being unlawfully held in custody from on or about 26th January 2016 to 3rd March 2016.

2. A declaration that the gun and ammunition forming the substance of the charge and its particulars in criminal case No. 211 of 2016 pending for hearing and final determination before the Chief Magistrate's Court in Garissa were unlawfully obtained hence ineligible to be used as evidence against him in the said criminal case.

3. An order that the charge and proceedings in Criminal Case No. 211 of 2016 pending for hearing before the Chief Magistrate's Court in Garissa as a foresaid be quashed and the accused be forthwith set free unless otherwise lawfully detained in connection with any other matter.

4. That this Honourable court do make any other order which would re-affirm, restore, safeguard and protect the applicants fundamental rights, liberties and privileges as provided for in the letter and spirit of the Constitution of Kenya 2010 to prevent abuse of the process of the court through the said criminal case.

3. The petition was filed with an affidavit sworn by the petitioner on 3rd November, 2016. In the said affidavit the petitioner stated that he was arrested at Ifo with his wife on 26th January, 2016 at 6. 00 am by heavily armed security personnel and taken to Dadaab Police Station where upon his wife was released. His face was then covered with a cloth and he was hand cuffed, and put into a vehicle taken to a place where he later learned was the Kenya Army Military Barracks in Garissa town. He deponed that he was not allowed to see anybody and remained there from 27th January 2016 to 29th February 2016 a period of about 20 days, where he found a second person, whom he later came to know as Ali Muhumed, and on 29th February 2016 he was taken to Garissa Police Station where he stayed until 3rd March, 2016. At Garissa Police Station they were booked under OB No. 71/29/2/2016.

4. The two were then taken to Garissa Law Courts by Police Constable Nicholas Mutinda underMiscellaneious Criminal Application No.18 of 2016, for detention for investigations which was declined. He later learnt that the said Ali Muhumed was also referred to in court as Isaack Mohamed.

5. The two were then taken to Garissa Police Station, then boarded into a vehicle to Dadaab police station where the police pretended to take them to Ifo and in the process he was slapped viciously and kicked and instructed to dig the ground where a gun and ammunition were available, then they were taken to Dadaab police station and his companion suddenly released though they dug for the gun and ammunition together.

6. He claimed to have been held unlawfully for period longer than allowed in law, and he challenged what he thought were contradicting police records on his arrest.

7. He annexed to the affidavit a copy of the charge sheet, a Notice of Motion filed by Police Constable Nicholas Mutinda for the court to grant custodial orders which the court declined, as well as OB entry No. 32/03/03/1/2016, and a covering report, a statement from Chief Inspector Jackson, and a statement from PC Allan Ochieng to support his petition.

8. In response to the petition the 1st respondent, Director of Public Prosecutions (DPP) filed Grounds of Opposition dated 9th January, 2017 denying the allegations of alleged atrocities made by the petitioner. The 1st respondents stated that in deed the petitioner was charged in Garissa Chief Magistrates' Criminal Case No. 211 of 2016 with possession of a firearm and ammunitions without certificates. According to the DPP the petitioner had through the petition arrogated to himself the function of the court by predetermining the outcome of the pending criminal case. The DPP also stated that the petitioner could not claim to have been denied legal support as he was represented by counsel throughout in the court proceedings. The DPP also denied that family members of the petitioner were prevented from seeing him.

9. In response to the petition the Attorney General (AG) for the 2nd, 3rd, 4th and 5th respondents filed Grounds of Opposition dated 9th January, 2017, contending that the respondents jointly and severally with other lawfully mandated entities had Constitutional and legal mandate to arrest and charge any person in court for having committed an offence under Kenya laws. It was also a ground that the petitioner had the burden to prove and demonstrate that he was treated in inhuman and degrading manner. It was also the contention of the Attorney General that the illegality of the charge and proceedings in Garissa Chief Magistrate Criminal case No. 211 of 2016 had not been proved. In addition the AG contended that the petitioner had been accorded a fair hearing as he was represented by counsel at the trial and that no family member was denied access to him. According to the AG, the petition was misconceived, fatally defective and an abuse of the process of the court.

10. Also filed by the Attorney General were a replying affidavit of Inspector Nicholas Mutinda of Directorate of Criminal Investigations in Garissa and Chief Inspector Jackson Muriuki of Directorate of Criminal Investigations Dadaab Sub-county.

11. The petitioner's counsel filed written submissions to the petition. The respondents, though given time to file written submissions, did not do so. On the hearing date, Mr. Onono Learned Counsel for the petitioner relied on the written submissions filed. Mr. Ogosso for the 2nd, 3rd 4th , and 5th respondents stated that he had misplaced his file but that he would file written submissions before the judgment date. Mr. Okemwa for the 1st respondent asked the court to fix a judgment date and said that he would file his written submissions, though, as I have stated above, both respondents counsel did not file written submissions.

12. I have considered the petition and all documents filed herein. Though the petition relates to pending Criminal proceedings in the Chief Magistrate's Court at Garissa, I have not been told by the petitioner’s counsel that there has been any irregularity in the manner in which the magistrate has conducted those criminal proceedings, or that any issue of a constitutional, legal or procedural nature was raised by the defence before the trial magistrate prior to filing this Constitutional petition.

13. Every person has a right to protection from violation of his/her rights under the Constitution of Kenya 2010. This court, which is the High Court of Kenya has jurisdiction to entertain any action for alleged violation of Constitutional rights, whether the said violation is outside court proceedings, or within the conduct of court proceedings see Article 165 (3) (b) of the Constitution of Kenya 2010. The petitioner certainly has a right to come to this court for redress when he alleges that his constitutional rights have been violated.

14. However, in my view, this matter relates to ongoing criminal proceedings, and has to be determined in that context. The magistrate under Section 89(5) of the Criminal Procedure Code (Cap.75) had powers to reject the charge. I have not been told that the charge was challenged as being defective or improper. I have also not been told that any issue of Constitutional, legal or procedural nature was raised before the magistrate.

15. Therefore in my view, neither the charge nor production of evidence or exhibits therein relating to the pending criminal casecan be challenged in this court through the petition herein. The allegations of inhuman treatment cannot also vitiate the pending criminal proceedings.

16. In my view, these proceedings or petition herein is misconceived and premature. It seems to be an attempt to scuttle the ongoing criminal proceedings by diversionary tactics, instead of giving a chance to the prosecution and the defence therein to put their case before the criminal trial court for a substantive decision to be made in the criminal case.

17. In my view, these proceedings cannot be sustained, as they appear to be a parallel process to an already ongoing criminal court process. To save the petitioner from the application of the doctrine of res judicata however, I will strike out these proceedings as being premature instead of dismissing the petition. On costs, since the petitioner is already an accused person in pending criminal proceedings, before the magistrate’s court, I will order that each party bear their respective costs of these proceedings.

18. I thus strike out the petition herein as premature. I order that parties bear the respective costs of these proceedings.

Dated and delivered at Garissa on 6th December, 2017.

George Dulu

JUDGE