[2024] KEHC 6616 (KLR)

Hassan v Mainga & 5 others; Osman (Interested Party) (Petition E077 of 2023) [2024] KEHC 6616 (KLR) (Constitutional and Human Rights) (7 June 2024) (Ruling)

Neutral citation: [2024] KEHC 6616 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E077 of 2023

LN Mugambi, J

June 7, 2024

Between

Adan Issak Hassan

Petitioner

and

Philip J. Mainga

1st Respondent

Kenya Railways Corporation

2nd Respondent

Attorney General

3rd Respondent

OCS Railways Police Station

4th Respondent

Inspector General of Police

5th Respondent

Director of Public Prosecutions

6th Respondent

and

Hon. Hassan Aden Osman

Interested Party

Ruling

1. This ruling is respect of the 1st and 2nd Respondents’ preliminary objection dated 24th July 2023 as against the Petition dated 13th March 2023. The Petitioner alleges that the Respondents’ violated the Petitioner’s rights during his arrest on 10th March 2023 at his uncle’s residence (Interested Party) at Kileleshwa which was followed by subsequent detention.

2. The preliminary objection was filed on the grounds that:i.The Petition fails to meet the threshold of what constitutes a Constitutional Petition per the Principles laid down in the locus classicus case of Anarita Karimi Njeru.ii.No Constitutional issues are discernible in the entire Petition to warrant admission and adjudication by this Court.iii.The Petition is vexatious and an abuse of Court process and ought to be struck out.

Petitioner’s Response 3. In answer, the Petitioner filed his replying affidavit sworn on 4th August 2023. He asserts that the objection has not met the threshold set for preliminary objections. He stated that the Petition meets the threshold set in Anarita Karimi Njeru v. Republic, (1979) KLR 154 and claimed that the objection is an attempt to deny him a fair hearing by obstructing him from getting an opportunity to present his substantive case to the Court on violation of his constitutional rights. He stated that it is the Court’s mandate under 22, 23 and 165 of Constitution to safeguard his constitutional rights.

Respondents’ Case 4. The other Respondents did not file a response to the Preliminary Objection. The 6th Respondent however informed the Court that it would adopt the 1st and 2nd Respondents submissions.

Interested Party’s Case 5. The Interested Party did not file any response or submission to the Preliminary Objection.

1stand 2ndRespondents’ Submissions 6. Mckay and Company Advocates on these Respondent’s behalf filed submissions dated 20th September 2023 and highlighted three key issues, namely: whether the Petition meets the threshold of a constitutional Petition; whether there are any constitutional issues arising from the Petition and whether the Petition is vexatious and an abuse of the court process.

7. Relying on Anarita Karimi Njeru (supra), Counsel submitted that a constitutional petition should set out with a degree of precision the Petitioner’s grievance, the provisions infringed and the manner in which they are alleged to be infringed but this Petition has failed to do so. Counsel submitted that the Petitioner has failed to link the 1st and 2nd Respondent’s to the Petitioner’s complaint and by indicating how they infringed on his rights.

8. Secondly, that the Petition does not raise any constitutional issues as it does not force the court to interpret the constitution as held in Hakiziman Abdul Abdulkarim –Vs- Arrow Motors Ea Ltd & Another (2017) eKLR. Consequently, Counsel argued that the Petitioner’s grievances were capable of being resolved through other legal forum being a complaint relating to arrest and detention. Reliance was placed in John Harun Mwau vs. Peter Gastrow & 3 Others (2014) eKLR where it was held that:“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration of rights…It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so.”

9. Like dependence was placed in Mokoosio & another v Vadera & 3 others (Petition 13 of 2020) [2021] KEHC 56 (KLR).

10. Thirdly, Counsel submitted that the instant Petition is an abuse of the Court process as there another case, being CMCC No. E407 of 2022 which is still pending determination and will probably address the issues raised herein. For this reason, the 1st and 2nd Respondent submitted that the Petitioner was using this suit to get underserved court orders. Reliance was placed in Karatina Municipal Council & another v Kanyi Karoki [2015] eKLR where it was held that:“From the explanation given in Halsbury’s Laws of England and the decisions cited thereof, frivolous or vexatious proceedings are understood to be synonymous with or aspects of what is deemed to be an abuse of the process of the court and therefore these concepts may not necessarily be distinct from each other; where one exists the other will certainly be lurking around. Thus, in Hunter versus Chief Constable of West Midlands Police (1982) AC 529, relitigating on the same issues was held to be vexatious and therefore an abuse of the process.”

11. Similar reliance was also placed in The Kenya Section of The International Commission of Jurists –Vs-Attorney General & Two Others (Supr Ct Cr. Application No 1 of 2012) and County Council of Nandi vs. Ezekiel Kibet Rutto & 6 Others (2013) eKLR.

Petitioner’s Submissions 12. Metto and Company Advocates for the Petitioner filed submissions dated 10th January 2024 where Counsel submitted that the first question that should be determined is whether the preliminary objection meets the threshold set out in Mukisa Biscuit Manufacturing Co Ltd-vs- West End Distributors Ltd (1969) EA 696. Thta is:“It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained.”

13. Accordingly, Counsel submitted that the 1st and 2nd Respondent’s objection does not satisfy this threshold. This is because it raises matters which requires this Court’s interrogation of the facts and examination of the evidence before a determination is made. For this reason, Counsel argued that the objection was not a pure point of law.

14. Conversely, Counsel stated that the issues raised in the Petition are purely constitutional violations. In the same breath, Counsel stressed that the 1st and 2nd Respondents had not demonstrated which Statute provides for the sought remedies as alleged. Reliance was placed in John Harun Mwau (supra) as follows:“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration of rights ... It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so.”

15. It was argued thus that the preliminary objection is misplaced as the multiple issues raised by the 1st and 2nd Respondents cannot be determined through a preliminary objection.

16. On the issue of abuse of the Court process, Counsel countered that the Petition raises serious questions of breach of the Petitioner rights. Moreover, Counsel submitted that the Petitioner moved this Court under Article 50(1) of the Constitution so that his rights can be enforced. Reliance was placed in Onyango Oloo vs. Attorney General (1986-1989) EA 456 where it was held that:“The principle of natural justice applies where ordinary people would reasonably expect those making decisions which will affect others to act fairly and they cannot act fairly and be seen to have acted fairly without giving an opportunity to be heard…”

17. Like dependence was placed in Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 others [2001] eKLR,R vs. Vice Chancellor JKUA'f Misc. Appl. No. 30 of 2007 and Ridge vs. Baldwin [1963] 2 All ER 66.

Analysis and Determination 18. This issues that arise for determination based on the submissions are as follows:i.Whether the Preliminary Objection dated 24th July 2023 has met the legal threshold.ii.Whether the Preliminary objection is merited.

Whether the preliminary objection meets the legal threshold 19. The threshold of a preliminary objection was set out by the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd (supra) as follows:“...a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit.”

20. The Court went further to note thatA preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.

21. Likewise, the Court in Oraro v Mbaja (2005) eKLR, on the nature of preliminary objections held that:“I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement with learned counsel, Mr. Ougo, that “where a Court needs to investigate facts, a matter cannot be raised as a preliminary point…….As already remarked, anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”

22. The preliminary objection in this matter is founded on three grounds: First, the Petition does not meet the threshold for a constitutional petition; Second does not raise a constitutional issue and lastly is an abuse of the Court process. The Respondent in raising the Preliminary Objection did not introduce any contested factual matters as alleged by the Petitioner. It is apparent to me that his Preliminary Objection was primarily confined to the facts as pleaded in the Petition and did not seek to introduce disputed facts. The Preliminary Objection, if successfully argued has the ability to dispose the entire Petition. I thus find that it satisfies the legal threshold of a preliminary objection.

23. The second issue is whether the Petition meets the precision test as laid down in the cerebrated case of Anarita Karimi (1979) eKLR, which was later affirmed by the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR and the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (2014) eKLR. In Anarita Karimi Njeru case (supra), the Court stated:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.

24. The Supreme Court upholding the above principle in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra) held:“…. Although Article 22 (1) of the Constitution gives every person the right to institute proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the right said to be infringed as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic (1979) KLR 154; the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays positive role, as a foundation of conviction and good faith, in engaging the Constitutional process of dispute settlement…”

25. This therefore calls for the examination of the instant Petition to determine if it meets the Anarita Karimi Njeru test. The Petition is specific in regard to the date the alleged violation took place, namely; the 10th of March, 2023. He further alleges that his arrest on allegations of trespass (which is subject to proof) is a scheme hatched by 1st and 2nd Respondent and executed by the 4th Respondent to illegally evict him from house No.6 Kileleshwa that his Uncle was lawfully occupying so as to skirt around a Court order that had restrained his eviction hence the arrest was intended to facilitate them to take over possession without following the due process. He alleged that the arrest, detention and confiscation of his motor vehicle was a violation of his rights, particularly, Articles 40, 47 and 52 of the Constitution.

26. My finding is that the particulars contained in the Petition are precise as the Petition shows the articles that were allegedly violated, gives a factual background of what informed the filing of the Petition and the manner the violation occurred including the alleged involvement of the Respondents in the said violation. The Petition in my view meets the precision test required of a Constitutional Petition.

Constitutional issue 27. The next issue is whether the Petition raises constitutional issues. A constitutional question is an issue that compels the Court to refer to the Constitution in order to resolve. If the matter can be resolved without resorting to the Constitution, those other means should be emphasized instead of invoking the Constitution. In Munene vs Director of Public Prosecutions & 3 others (Constitutional Petition 5 of 2022) [2023] KEHC 25900 (KLR) (30 November 2023) (Judgment) the Court stated:“36. The South African Constitutional Court in Fredricks & Other vs. MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC), rightly so, delimited what a constitutional issue entails and the jurisdiction of a Constitutional Court. It stated as follows: -

The Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…”The Court further stated:“…When determining whether an argument raises a constitutional issue, the Court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the Court to consider constitutional rights and values…”

28. The Petitioner alleges that he was arrested and detained to camouflage and achieve the objective of effecting an eviction from a property he had occupied through his uncle who had secured a court order restraining the Respondents from carrying out the eviction. In the course of that arrest, his property was seized and confiscated by the Respondents. Given the facts, the Court has to refer to the Bill of Rights in order to determine the issues in question and also consider the implication of the alleged Court order, if any, in relation to the rule of law principle. The issues raised relate to observance of the Bill of Rights, accountability and impartiality by those charged with the enforcement of the law. The court has to determine if the arrest and detention was in the line with principles set out in Article 29, 49, 50 and 51 of the Constitution. The respondents will be required to demonstrate the lawfulness of the conduct or detention. These are Constitutional questions.

29. Having found that the Petition meets the precision benchmark required of a Constitutional Petition in that the Petitioner has sufficiently set out facts showing the manner the alleged violation was occasioned and also, that the Petition raises constitutional questions, the assertion that the Petition is an abuse of the process of the Court is unsustainable. This Court must assume jurisdiction and determine the issues raised in the Petition.

30. I thus find that the preliminary objection lacks merit and is hereby dismissed. Costs shall be in the cause.

Dated, signed and delivered at Nairobi this 7th day of June, 2024. ………………………………….L N MUGAMBIJUDGEConstitutional Petition No. E077 of 2023 Page 4 of 4