https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7754

Inganga v Inspector General of Police & another (Petition E168 of 2024) [2026] KEHC 7754 (KLR) (Constitutional and Human Rights) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7754 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E168 of 2024 B Mwamuye, J May 28, 2026 Between Brian Emmanuel Inganga Petitioner and The Inspector General of Police 1st Respondent The Hon. Attorney General 2nd Respondent Judgment Introduction 1.The Petition dated 27th March 2024 is before this Court for determination. It is instituted by the Petitioner, Brian Emmanuel Inganga, pursuant to Articles 22 and 23 of the Constitution of Kenya, 2010, seeking redress for alleged violations of his fundamental rights and freedoms arising from events said to have occurred on or about 4th April 2021. 2.The dispute concerns the circumstances surrounding the Petitioner’s arrest, detention, and subsequent prosecution. The Petitioner contends that the impugned actions by officers of the National Police Service were unconstitutional, unlawful, and amounted to an abuse of power, culminating in criminal proceedings that ultimately terminated in his favour. 3.The Respondents oppose the Petition and maintain that the actions complained of were lawful, justified, and undertaken in the course of enforcing public order and COVID-19 curfew regulations then in force. They further contend that the arrest and prosecution were grounded in law and properly within the mandate of the National Police Service and the Office of the Director of Public Prosecutions. The Petitioner’s Case 4.The Petitioner’s case is anchored on the Petition dated 27th March 2024, the Supporting Affidavit sworn on the same date, the Further Affidavit sworn on 21st October 2024, and his written submissions dated 13th May 2025. 5.The Petitioner avers that he is a Kenyan citizen and a professional photojournalist duly accredited by the Media Council of Kenya. He contends that on the night of 4th April 2021 at about 9.30 p.m., he was lawfully travelling home as a passenger in a taxi when the vehicle became ensnared in a traffic snarl-up within the vicinity of Olympic area, Kibera, Nairobi. 6.It is the Petitioner’s case that while in the said traffic, he observed a male adult alight from a white Toyota Prado motor vehicle ahead of his taxi and proceed to accost occupants of a matatu similarly immobilised by the congestion. Concerned by the unfolding events, he states that he alighted from the taxi and approached the said individual in order to ascertain the circumstances obtaining at the scene. 7.It is contended that upon engagement, the said individual retreated to his vehicle, retrieved a firearm following a brief interaction with a female companion, and discharged a shot into the air, thereby precipitating panic and chaos. He further contends that the said individual then violently accosted him, forced him onto the ground, and stepped on him while declaring himself to be Chief Inspector Peter Gichohi, then Officer Commanding Station (OCS), Kilimani Police Station, and asserting that the Petitioner stood arrested. 8.It is the Petitioner’s further case that despite immediately identifying himself as a duly accredited journalist and producing his Media Council press card, and notwithstanding his explanation that he was exempt from the prevailing COVID-19 curfew regulations, the said officer disregarded his representations. He avers that the officer appeared intoxicated and thereafter summoned reinforcement through a telephone call. 9.The Petitioner states that officers from Sarangombe Police Post, including uniformed police officers, arrived shortly thereafter and assumed control of the scene. He avers that instead of independently assessing the situation, the said officers proceeded to re-arrest him without disclosing any offence, and escorted him first to Sarangombe Police Post and thereafter to Kilimani Police Station, where he was booked into custody. 10.The Petitioner places particular emphasis on the circumstances and duration of his detention. He avers that he remained in police custody for approximately sixteen (16) hours, during which time he was neither informed of the reason for his arrest nor furnished with any written or verbal particulars of the alleged offence. According to him, this violated his constitutional rights as an arrested person under Article 49(1)(a)(i) and his right to prompt release or arraignment within the constitutional timelines under Article 49(1)(f). 11.He further avers that on 5th April 2021 at about 1.00 p.m., he was released on police cash bail of Kshs. 20,000/-, with the alleged offences indicated as contravention of government directives and resisting arrest. He states that despite complying with subsequent directions by the investigating officer, Police Constable Jane Wanjiru, including attendance at Kibera Law Courts on 7th and 9th April 2021, no charge sheet was ready and no substantive explanation was offered. 12.The Petitioner was eventually arraigned on 16th April 2021 before the Chief Magistrate’s Court at Kibera in Criminal Case No. E700 of 2021, where he faced three counts: i) obstruction of a police officer in execution of duty contrary to Section 103A of the National Police Service Act, 2011, ii) resisting arrest contrary to Section 254(b) of the Penal Code, and iii) breach of curfew orders, the latter count being withdrawn prior to plea. He pleaded not guilty to the remaining counts and was admitted to bail. 13.The Petitioner states that the prosecution case was led by, inter alia, Chief Inspector Peter Gichohi, the complainant, and Police Constable Jane Wanjiru, the investigating officer, together with two other police witnesses. He contends that the evidence adduced was inconsistent, lacked reasonable basis, and ultimately failed to establish any evidential threshold. 14.Upon conclusion of the prosecution case, the trial court in a ruling delivered on 27th March 2023, held that no prima facie case had been established against the Petitioner. The court further found that the charge sheet was fundamentally defective, including for reliance on non-existent statutory provisions and evidential gaps that rendered the prosecution case unsustainable. 15.The Petitioner places particular reliance on the said ruling as a material judicial determination emanating from the criminal trial itself, contending that it is demonstrative of the absence of reasonable and probable cause in instituting and sustaining the prosecution. He further submits that the proceedings ultimately terminated in his favour upon his acquittal under Section 210 of the Criminal Procedure Code. 16.It is the Petitioner’s case that the totality of the foregoing circumstances discloses a violation of his constitutional rights and fundamental freedoms. He relies on Articles 28, 29, 39, and 49 of the Constitution, asserting infringement of the right to dignity, freedom and security of the person, freedom of movement, and the rights of arrested persons, respectively. 17.He further contends that the actions of Chief Inspector Peter Gichohi and officers attached to Kilimani Police Station and Sarangombe Police Post were arbitrary, excessive, and amounted to an abuse of police power. He submits that the arrest and detention were not grounded on reasonable suspicion and were therefore unconstitutional. 18.On the legal principles governing his claim, the Petitioner relies on Republic v Otieno Kajwang’ & Another Ex Parte Mohamud Muhumed Sirat [2009] eKLR on the evidentiary value of affidavits and the impropriety of hearsay in constitutional litigation, Salim Awadh Salim & 10 others v Commissioner of Police & 3 others [2013] eKLR on unlawful arrest and detention as actionable constitutional violations and Emmanuel Kuria Wa Gathoni v Commissioner of Police & Another [2017] eKLR on the elements of malicious prosecution. 19.He also places reliance on Jaston Ongule Onyango v Attorney General & Another [2015] eKLR, Anthony Murimi Waigwe v Attorney General & 4 others [2020] eKLR, and Stephen Ayugi v National Housing Corporation & 4 others [2019] eKLR on the principles guiding award of general damages for constitutional violations, as well as Muslims for Human Rights & Another v Inspector General of Police & 2 others [2024] eKLR on the award of exemplary and punitive damages in cases of egregious abuse of rights. 20.On that basis, the Petitioner seeks declaratory reliefs, general damages for violation of his constitutional rights, exemplary and punitive damages, special damages in the sum of Kshs. 494,150/-, as well as costs and interest. The Respondents’ Case 21.The Respondents oppose the Petition through a Replying Affidavit sworn by Albert Chebii, the then Officer Commanding Station (OCS), Kilimani Police Station, on 1st October 2024. The deponent avers that he is duly competent to swear the affidavit by virtue of his position and responsibilities as OCS. 22.It is the Respondents’ case that on the material night of 4th April 2021 at about 9.30 p.m., officers attached to Kilimani Police Station, under the command of Chief Inspector Peter Gichohi, were deployed within the Kibera Olympic area in Nairobi in the course of enforcing the prevailing COVID-19 curfew orders. They contend that the officers were lawfully executing their mandate aimed at maintaining public order and ensuring compliance with the Public Order (State Curfew) regime then in force. 23.The Respondents aver that during the said operation, the Petitioner was observed to be intoxicated and engaged officers on duty in a confrontational manner, questioning their presence and allegedly obstructing traffic enforcement operations. They state that despite being informed of the lawful basis of the operation, the Petitioner alighted from his vehicle, caused a disturbance, and became hostile, aggressive, and resistant to police instructions. 24.It is further the Respondents’ case that the situation escalated, necessitating the intervention of reinforcement officers from Sarangombe Police Post, who were called to the scene to assist in restoring order. The Petitioner was thereafter subdued and placed under arrest for obstructing police officers in the execution of their lawful duties and resisting arrest. 25.The Respondents maintain that at all material times, the Petitioner was accorded the rights of an arrested person as guaranteed under Article 49 of the Constitution, and that he was subsequently processed and presented before court within the constitutionally stipulated timelines. They further aver that he was admitted to cash bail and duly charged before the Chief Magistrate’s Court at Kibera. 26.The Respondents deny, in particular, the averments contained in paragraphs 6 to 14 of the Petitioner’s affidavit, which they describe as materially false, exaggerated, and reflective of the Petitioner’s alleged intoxicated state at the time of the incident. They contend that the Petitioner’s status as an accredited journalist did not exempt him from compliance with lawful police instructions or confer immunity from lawful arrest. 27.On the constitutional competence of the Petition, the Respondents submit that the claim, particularly in so far as it relates to malicious prosecution, is misconceived as it properly falls within the realm of private tort and not constitutional adjudication. Reliance is placed on Royal Media Services Ltd v Attorney General [2018] eKLR and Gabriel Mutava & 2 others v Managing Director, Kenya Ports Authority & another [2016] eKLR, for the proposition that courts ought to exercise restraint under the doctrine of constitutional avoidance where disputes may be adequately resolved under existing legal frameworks without recourse to constitutional interpretation. 28.The Respondents further invoke the threshold established in Anarita Karimi Njeru v Republic [1979–1980] KLR 1272, contending that the Petition lacks the requisite precision in pleading the specific constitutional provisions allegedly infringed and the manner of such infringement. 29.With regard to the Replying Affidavit sworn by Albert Chebii, the Respondents submit that as the OCS of Kilimani Police Station, the deponent was sufficiently conversant with the events in issue and was the lawful custodian of the station’s records. They rely on Order 19 Rule 3(1) of the Civil Procedure Rules, 2010, arguing that affidavits may properly contain matters of information and belief provided the sources thereof are disclosed, and urge the Court to find the affidavit competent and admissible. 30.On the merits of the Petition, the Respondents contend that the Petitioner has failed to discharge the evidentiary burden required in constitutional litigation. They maintain that the arrest was founded on reasonable suspicion and was lawfully undertaken in the course of police duties. They further submit that the subsequent prosecution was instituted by the Office of the Director of Public Prosecutions in exercise of its constitutional mandate under Article 157, and cannot be imputed to malice solely on account of the eventual acquittal. 31.The Respondents argue that an acquittal under Section 210 of the Criminal Procedure Code does not, ipso facto, translate into a violation of constitutional rights or establish malicious prosecution. They contend that the Petitioner has failed to demonstrate absence of reasonable and probable cause, or to establish that the prosecution was actuated by malice on the part of the police or prosecuting authorities. 32.Consequently, the Respondents pray that the Petition be dismissed with costs. Analysis And Determination 33.Having carefully considered the pleadings on record, the rival affidavits, the documentary material placed before the Court, and the respective submissions of learned counsel, the Court is of the considered view that the following issues arise for determinationi.Whether the Petition meets the threshold for constitutional litigation, with particular regard to the doctrine of constitutional avoidance and the requirement of reasonable precision in constitutional pleadings as articulated in Anarita Karimi Njeru v Republic.ii.Whether the Replying Affidavit sworn by Albert Chebii, the Officer Commanding Station, Kilimani Police Station, is admissible and, if so, the evidential weight to be accorded thereto.iii.Whether the Petitioner has, on a balance of probabilities, established that his fundamental rights and freedoms under Articles 27(1), 28, 29(a), (c) and (f), 39(1), and 49(1)(a)(i) of the Constitution were violated by the Respondents or their agents.iv.Whether the Petitioner has established, on a balance of probabilities, the tort of malicious prosecution against the Respondents.v.Whether the Petitioner is entitled to the reliefs sought Whether the Petition meets the threshold for constitutional litigation, with particular regard to the doctrine of constitutional avoidance and the requirement of reasonable precision in constitutional pleadings as articulated in Anarita Karimi Njeru v Republic. 34.The Respondents raise an objection contending that the Petition offends the doctrine of constitutional avoidance. Reliance is placed on Royal Media Services Ltd v Attorney General (supra) and Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority & Another (supra), on the basis that the dispute is, in essence, a claim for malicious prosecution grounded in private law, and that the constitutional court ought therefore to decline jurisdiction in favour of ordinary civil processes. 35.The doctrine of constitutional avoidance is a principle of judicial restraint which requires a court to decline to determine a constitutional question where the dispute can be resolved through the application of ordinary law. However, the doctrine is not a jurisdictional ouster. It applies only where the constitutional question is peripheral, superfluous, or unnecessary to the resolution of the dispute. 36.In determining whether the doctrine is applicable, the Court must consider:i.whether the pleadings disclose a clear and substantive constitutional issue.ii.whether the alleged violations are incidental to, or central to, the cause of action andiii.whether an adequate non-constitutional remedy exists which would fully resolve the dispute without leaving any constitutional question unresolved. 37.Applying the foregoing test, this Court is not persuaded that the Petition is merely an attempt to constitutionalise a private tort. The pleadings disclose allegations of arrest without reasonable cause, detention without disclosure of reasons, alleged physical violence, and deprivation of liberty in circumstances said to contravene express constitutional safeguards. These allegations directly implicate Articles 28, 29, 39 and 49 of the Constitution and are not peripheral to the claim. 38.Further, the reliefs sought are not confined to damages for malicious prosecution but include declarations of constitutional violation arising from the conduct of State officers in the course of arrest and detention. In such circumstances, the constitutional dimension is not incidental but forms the substratum of the dispute. 39.The Respondents further submit that the Petitioner’s reliance on his acquittal as a foundation for constitutional liability is misconceived. It is their contention that a finding of “not guilty” in criminal proceedings does not, without more, translate into a violation of constitutional rights or establish wrongdoing on the part of the arresting or prosecuting authorities. They argue that the constitutional standard is distinct, and that liability for malicious prosecution or breach of rights must still be established independently on the basis of absence of reasonable and probable cause and proof of malice 40.The Court accepts the foregoing legal position as a general principle. It is trite that an acquittal in criminal proceedings does not, in itself, automatically give rise to a finding of constitutional violation or civil liability. The criminal standard of proof beyond reasonable doubt and the constitutional or civil standards governing liability operate in distinct normative spheres. 41.However, that principle does not preclude a court, in appropriate cases, from examining the totality of the circumstances leading to arrest, detention, and prosecution in determining whether constitutional safeguards were violated. An acquittal may therefore be relevant, not as conclusive proof of illegality, but as part of the factual matrix informing whether there existed reasonable and probable cause, or whether the process was abused. 42.In the present matter, the Petitioner does not rely on the acquittal as the sole basis of his claim. Rather, it is pleaded as part of a continuum of alleged unlawful acts beginning with arrest, continuing through detention, and culminating in prosecution. 43.It is also well settled that constitutional remedies and private law remedies may co-exist where the factual matrix discloses violations capable of sustaining both causes of action. The mere fact that the same set of facts may also ground a tortious claim does not, without more, oust the jurisdiction of the Court under the Bill of Rights. In that regard, the Court draws guidance from Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR), where the Supreme Court, in considering the nature of constitutional remedies, quoted with approval the holding in John Atelu Omilia & another v Attorney General & 4 others [2017] eKLR as follows:“I accept in principle that constitutional damages as a relief separate and distinct from remedies available under private law is competent because a violation of a constitutional right must of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms.” 44.In the premises, the Court finds that the Petition raises substantive constitutional questions arising from the alleged conduct of State agents and is properly situated within the enforcement jurisdiction of this Court under Article 23 of the Constitution. The objection grounded on constitutional avoidance is therefore without merit. 45.The second limb of the objection concerns alleged non-compliance with the rule of precision in constitutional pleadings as articulated in Anarita Karimi Njeru v Republic (supra), and affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. 46.The governing principle is that a constitutional petition must disclose with reasonable precision, the constitutional provisions alleged to have been infringed, the manner of infringement and the nexus between the impugned conduct and the alleged violation. The object is not formalistic compliance, but the provision of sufficient notice to the Respondent to enable an effective response and to facilitate judicial determination. 47.In the present case, the Petition identifies the constitutional provisions invoked, namely Articles 27(1), 28, 29(a), (c), (f), 39(1), and 49(1)(a), (c), and sets out the factual foundation upon which each alleged violation is predicated. The Petition further narrates, in chronological form, the circumstances of the arrest, detention, and prosecution, linking each stage of the impugned conduct to the corresponding constitutional guarantee alleged to have been breached. 48.The question, however, is not whether the Petition is neatly structured, but whether it discloses with clarity the nature of the complaint and the constitutional injury alleged. The Court must avoid descending into unduly formalistic scrutiny that defeats substantive justice. 49.On evaluation, the Court is satisfied that the Respondents were placed in no doubt as to the nature of the case they were required to meet. This is evident from the detailed Replying Affidavit filed, which traverses the factual allegations and responds directly to the alleged violations of liberty, dignity, and fair process rights. 50.The Court of Appeal in Mumo Matemu (supra) cautioned that precision does not demand mathematical exactitude or procedural perfection, but rather requires that pleadings be sufficiently clear to avoid ambush and enable meaningful response. The present Petition meets that standard. 51.Accordingly, the Court finds that the Petition satisfies the threshold of reasonable precision as contemplated under Anarita Karimi Njeru v Republic (supra), as read with Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra). 52.In the result, the preliminary objection on both constitutional avoidance and alleged want of precision fails and is hereby dismissed. Whether the Replying Affidavit sworn by Albert Chebii, the Officer Commanding Station, Kilimani Police Station, is admissible and, if so, the evidential weight to be accorded thereto 53.The Petitioner challenges the Replying Affidavit sworn by Albert Chebii, the then Officer Commanding Station (OCS), Kilimani Police Station, on the basis that it is incompetent, constitutes hearsay, and is not founded on personal knowledge of the material facts. It is contended that the deponent was neither present at the scene on the night of 4th April 2021, nor involved in the arrest, detention, or investigation, and does not disclose the source of the information deponed to. 54.The Court begins from the settled position that affidavits are a recognised form of evidence upon which a court may found factual determinations. However, their probative value is not inherent, it is derived from the capacity of the deponent to swear to facts within personal knowledge or, where permissible, properly disclosed information and belief. 55.Order 19 Rule 3(1) of the Civil Procedure Rules, 2010 provides that affidavits shall be confined to facts within the deponent’s own knowledge, save that in interlocutory proceedings, or with leave of the Court, they may contain statements of information and belief, provided the sources and grounds thereof are disclosed. The present proceedings being the substantive hearing of a constitutional petition, the general rule requiring personal knowledge applies with full force. 56.That said, the Court must also recognise the practical reality that in litigation involving public institutions, particularly the National Police Service, affidavits are often sworn by officers in supervisory or administrative positions who may not have been physically present at the scene. The law does not, by that fact alone, render such affidavits inadmissible. The decisive consideration is whether the affidavit presents primary evidence, institutional knowledge properly grounded in disclosed sources, or whether it merely recites untested secondary accounts incapable of verification. 57.The evidentiary concern therefore is not one of form but of substance, whether the affidavit places before the Court admissible probative material capable of rebutting the opposing party’s case, or whether it merely reproduces hearsay unattributed to identifiable witnesses. 58.In Republic v Otieno Kajwang’ & another Ex-parte Mohamud Muhamed Sirat [2009] eKLR, the Court observed that an affidavit derives its probative value from the source of the facts deponed to, and that where a deponent does not depose to matters within his or her personal knowledge, such affidavit may carry limited evidential weight. Similarly, in Salim Awadh Salim & 10 others v Commissioner of Police & 3 others [2013] KEHC 2867 (KLR), the Court emphasized that averments by persons not directly involved in the events complained of amount to hearsay and are of minimal evidential assistance. 59.The Court of Appeal in PN Mashru Ltd v Ojenge [2023] KECA 473 (KLR) further underscored that evidence which is not tested through direct participation or cross-examination, where necessary, may attract little or no weight, particularly where it goes to contested and material facts. 60.Applying these principles to the present case, it is evident that the affidavit sworn by Albert Chebii does not purport to be based on personal knowledge of the events of 4th April 2021. The deponent was not the arresting officer, not the investigating officer, and not a witness to the incident forming the subject of these proceedings. More critically, the affidavit does not disclose the source of the information upon which the narrative of events is based, nor does it demonstrate institutional records properly relied upon. 61.The result is that the affidavit presents, in substance, a reconstructed narrative of events derived from unspecified sources within the police service. While such institutional narration is not per se inadmissible, its evidential value in contested proceedings is necessarily limited where primary actors are available but not called to depose to the facts. 62.The Court further notes that the Respondents did not place before it affidavits from Chief Inspector Peter Gichohi, the alleged complainant and central actor in the events, or Police Constable Jane Wanjiru, the investigating officer. Both were directly involved in the arrest and subsequent criminal process and were available to the Respondents. No explanation was offered for their absence. 63.In such circumstances, and guided by Section 107 of the Evidence Act, the burden remained on the Respondents to substantiate the lawfulness of the impugned conduct with cogent and admissible evidence. Where a party elects not to call material witnesses who are within its exclusive knowledge and control, and instead relies on secondary institutional narration, the Court is entitled to draw an adverse inference where appropriate. 64.The consequence is not that the affidavit is struck out or rendered void, but that its evidential weight on contested issues of fact is substantially diminished. It cannot, in the absence of supporting primary evidence, displace the detailed, sworn account of the Petitioner, particularly where that account remains largely uncontroverted by direct evidence. 65.Accordingly, the Court finds that the Replying Affidavit of Albert Chebii, though formally admissible as part of the record, carries minimal probative value on the central factual dispute relating to arrest, detention, and prosecution. The Respondents have therefore failed to place before the Court sufficiently persuasive evidence to rebut the Petitioner’s factual account on a balance of probabilities. Whether the Petitioner has, on a balance of probabilities, established that his fundamental rights and freedoms under Articles 27(1), 28, 29(a), (c) and (f), 39(1), and 49(1)(a)(i) of the Constitution were violated by the Respondents or their agents. 66.Having resolved the evidentiary contest in favour of the Petitioner on the material facts, the Court must now determine whether those facts, as established on a balance of probabilities, disclose violations of the constitutional rights pleaded. The inquiry is whether, in light of the conduct attributed to the Respondents’ agents, the safeguards under Articles 27(1), 28, 29(a), (c) and (f), 39(1), and 49(1)(a)(i) of the Constitution were observed or unlawfully infringed. It is trite that once a prima facie violation of a constitutional right is established against State agents, the evidential burden shifts to the State to justify the limitation in accordance with Article 24 of the Constitution. 67.It is not in dispute that the Petitioner was subsequently arraigned before the Magistrate’s Court and charged with specific offences arising from the incident in question. However, the gravamen of his complaint is not directed at the existence of criminal charges per se, but at the legality and constitutionality of the conduct of State agents at the point of arrest and during the initial period of detention, prior to his arraignment. 68.Article 28 of the Constitution guarantees the inherent dignity of every person and the right to have that dignity respected and protected. Dignity is a foundational constitutional value and is assessed objectively with reference to whether the conduct complained of is capable of humiliating, degrading, or dehumanising a person in the eyes of a reasonable observer. On the facts as established, the Petitioner was forcibly restrained, made to lie on a public road, and physically manhandled in the presence of members of the public. Such treatment, inflicted by persons purporting to exercise State authority, constitutes an affront to human dignity. It reduced the Petitioner to a position of subjugation inconsistent with his constitutional status as a rights-bearing individual. The Court is therefore satisfied that Article 28 was violated. 69.With respect to Article 29(a) and (c), the applicable test is whether the deprivation of liberty was founded on reasonable suspicion of the commission of an offence, and whether any force used was lawful, necessary, and proportionate. Arrest without reasonable suspicion is, by definition, arbitrary and unconstitutional. In the present case, no admissible evidence was placed before the Court demonstrating that the Petitioner had committed any offence or that there existed objective grounds for suspicion at the time of arrest. The arrest followed an altercation initiated by a police officer who, on the evidence, did not properly identify himself or communicate any lawful basis for intervention. The subsequent use of force, including physical assault and the discharge of a firearm into the air in a public place, constitutes violence within the meaning of Article 29(c). The Court is guided by the reasoning in Joseph Njuguna Njoroge v Attorney General & 2 others [2014] eKLR, where it was held that Article 29(c) prohibits violence from public sources even where such conduct falls short of the strict definition of torture. The Court accordingly finds that the arrest and attendant use of force were arbitrary, unlawful, and constitutionally impermissible. 70.Article 49(1)(a)(i) guarantees to every arrested person the right to be informed promptly, in a language they understand, of the reason for their arrest. This requirement is mandatory and serves as a safeguard against arbitrary exercise of police power. On the evidence before the Court, the Petitioner was not informed at the point of arrest, or during the initial period of detention, of the reasons for his arrest. He was instead moved between officers and detained at Sarangombe Police Post and Kilimani Police Station without any contemporaneous disclosure of the basis for his arrest. This constituted a violation of Article 49(1)(a)(i). Further, in light of the Court’s findings under Article 29(a) that the arrest was not founded on reasonable suspicion, the ensuing detention was without lawful justification and therefore arbitrary. 71.The requirement under Article 49(1)(a)(i) is not satisfied by a subsequent or retrospective explanation of the reasons for arrest. The Constitution imposes a contemporaneous duty on arresting officers to promptly inform the arrested person, at the point of arrest or immediately thereafter, of the reasons for the arrest in a language that the person understands. This obligation is intended to prevent arbitrary deprivation of liberty at the very moment State coercive power is exercised. A later disclosure, whether during interrogation, detention, or in court proceedings, cannot cure a prior constitutional breach, as the violation occurs at the point where the arrested person is deprived of liberty without being informed of the basis for such deprivation. 72.Article 39(1) guarantees freedom of movement. The Petitioner was lawfully proceeding on a journey home when his movement was forcibly interrupted by State agents. Although lawful arrest may constitute a permissible limitation of movement, such limitation must satisfy the requirements of Article 24, including legality, reasonableness, and justification. In this case, the arrest having been found to be unlawful, the consequent restriction of movement cannot be justified. The limitation was therefore unconstitutional. 73.Article 27(1) guarantees every person equal protection and equal benefit of the law. That guarantee requires that State officers exercise coercive powers in a lawful, non-arbitrary, and even-handed manner in accordance with constitutional and statutory safeguards. Where police officers act outside lawful authority, without reasonable or probable cause, and in disregard of mandatory safeguards governing arrest and prosecution, the affected person is thereby denied the equal protection and benefit of the law guaranteed under the Constitution. In the present case, the Petitioner was subjected to arrest, detention and prosecution in circumstances this Court has found to be unlawful and unsupported by reasonable and probable cause. The Court is therefore satisfied that Article 27(1) of the Constitution was violated. 74.Accordingly, the Court finds and holds that the Petitioner has established, on a balance of probabilities, that his rights under Articles 27(1), 28, 29(a), 29(c), 39(1), and 49(1)(a)(i) of the Constitution were violated by agents of the 1st Respondent. The Respondents failed to demonstrate any lawful basis for the impugned conduct or to justify the limitations imposed upon the Petitioner’s rights. The violations were therefore unconstitutional, unlawful, and actionable. Whether the Petitioner has established, on a balance of probabilities, the tort of malicious prosecution against the Respondents 75.The fourth issue for determination is whether the Petitioner has established, on a balance of probabilities, the tort of malicious prosecution against the Respondents. The law on malicious prosecution is settled and was restated in Mbowa v East Mengo District Administration [1972] EA 352, Murunga v Attorney General [1979] KLR 138, and Emmanuel Kuria Wa Gathoni v Commissioner of Police & Another (supra), where the essential elements were identified as follows: that the prosecution was instituted by the defendant, that it terminated in favour of the plaintiff, that it was instituted without reasonable and probable cause and that it was actuated by malice. 76.There is no dispute as to the first element. The prosecution of the Petitioner was initiated by agents of the 1st Respondent, being officers of the National Police Service, who arrested the Petitioner, processed the complaint, and caused him to be arraigned before the subordinate court. The involvement of the prosecuting authorities flows directly from the investigative actions of the police, who are the initial instigators of the criminal process in question. The first limb is therefore satisfied. 77.The second element is equally not in contest. The criminal proceedings terminated in the Petitioner’s favour when he was acquitted under Section 210 of the Criminal Procedure Code. The effect of such an acquittal is that the trial court found that no prima facie case had been established to warrant the accused being placed on his defence. The trial court further expressed concerns regarding the integrity of the charge sheet, noting that it referred to non-existent statutory provisions. A termination under Section 210 CPC constitutes a positive and final determination in favour of an accused for purposes of malicious prosecution. This position is supported by Jaston Ongule Onyango v Attorney General & another [2015] KEHC 7853 (KLR). 78.The central contest lies in the third and fourth elements, namely whether the prosecution was instituted without reasonable and probable cause and whether it was actuated by malice. Reasonable and probable cause has been defined as an honest belief in the guilt of the accused based upon a full conviction founded on reasonable grounds of the existence of circumstances which would lead an ordinarily prudent and cautious person to conclude that the accused was probably guilty. The test is both subjective and objective. There must be an actual belief in guilt and that belief must be supported by reasonable grounds. 79.The Court must therefore interrogate whether, at the time of instituting the prosecution, there existed an objective evidential foundation sufficient to justify the charges. The record of the criminal proceedings, which forms part of the evidentiary material before this Court, discloses that the complainant, C.I. Peter Gichohi, was not in uniform at the material time, was in a civilian vehicle, and carried a private firearm. He further conceded that the formal police report was made belatedly. The trial court itself raised concerns regarding the evidential coherence of the prosecution case, particularly on the issue of identification of the Petitioner as a person who could reasonably be said to have resisted a known police officer. 80.More significantly, the charges preferred included statutory provisions that, on their face, were either inapplicable or non-existent as framed, a fact noted by the trial magistrate in the subordinate court proceedings. While errors in drafting may not, in isolation, establish absence of reasonable and probable cause, they are relevant to the broader inquiry as to whether the prosecution was founded on a careful, objective assessment of the evidence or proceeded in a mechanical and uncritical manner. 81.Viewed in totality, the material before the Court does not disclose an evidential foundation that would lead an ordinarily prudent prosecutor to conclude that there was a proper basis for prosecution. The Court is not persuaded that there existed reasonable and probable cause in the legal sense contemplated by the authorities. The prosecution appears to have proceeded notwithstanding evident factual and legal deficiencies in the underlying complaint. 82.On the question of malice, it is well established that it need not be proved by direct evidence but may be inferred from the surrounding circumstances. In Lucas Omoto Wamari v Attorney General & another [2017] eKLR, the Court of Appeal held that malice may be inferred from a deliberate or reckless disregard of relevant facts and from circumstances that demonstrate an improper motive in the institution of proceedings. In arriving at the above conclusion, the Court of Appeal stated thus:“ 36.With respect, the trial judge erred in finding that there was no animus malus. The evidence, not only established the absence of reasonable and probable cause, but showed the absence of honesty and a deliberate attempt by the police to fix the appellant by introducing the capital charges, this was clear malice…” 83.In the present case, malice is to be inferred from the cumulative circumstances surrounding the prosecution. The initial confrontation, the subsequent arrest, and the preferring of charges that were not properly anchored in law, viewed alongside the factual deficiencies in the prosecution case, support an inference that the criminal process was not solely directed at the pursuit of legitimate penal objectives. The Court is mindful, however, that malice must not be conflated with mere error or acquittal. It must be grounded in evidence demonstrating improper purpose or reckless disregard of the truth. 84.In that regard, while the Petitioner urges the Court to find that the prosecution was intended to sanitise or legitimise the conduct of the arresting officer, the Court must be slow to elevate suspicion into proof. What is established on record, however, is a prosecution founded on materially weak evidential grounds and pursued in circumstances where an objectively reasonable prosecutor ought to have exercised greater caution before invoking the criminal process. 85.The Court is further guided by Republic v Attorney General ex parte Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001, where it was reiterated that a criminal prosecution commenced in the absence of a proper factual foundation is always suspect for ulterior motive. While not every defective prosecution is malicious, where absence of reasonable and probable cause is coupled with disregard of material inconsistencies, an inference of malice becomes sustainable on a balance of probabilities. 86.The Court further takes judicial cognisance of the subordinate court’s findings that the charge sheet contained fundamental legal defects, including reference to non-existent statutory provisions and misdescription of offences. While those findings arose in the criminal trial, they form part of the factual matrix relevant to the assessment of whether the prosecution was grounded on lawful and proper exercise of prosecutorial discretion. 87.In the final analysis, the Court finds that the prosecution of the Petitioner was not supported by reasonable and probable cause and that, in the circumstances of this case, malice may properly be inferred from the manner in which the criminal process was initiated and pursued. The essential elements of malicious prosecution having been established, the Petitioner is entitled to relief under this head. The inference of malice in this case is drawn not from the fact of acquittal alone, but from the totality of circumstances including the absence of reasonable and probable cause, the evidential weaknesses apparent at the time of institution of proceedings, and the manner in which the criminal process was invoked and sustained. 88.Accordingly, the Court finds and holds that the Petitioner has proved, on a balance of probabilities, the tort of malicious prosecution against the Respondents. The declaration sought in prayer (iv) of the Petition is therefore granted. Whether the Petitioner is entitled to the remedies sought, including special damages, general damages, exemplary damages, costs, and interest 89.Having found that the Petitioner’s constitutional rights and fundamental freedoms were violated and that his prosecution was instituted maliciously and without reasonable and probable cause, the Court must now determine the appropriate relief. The power of this Court to grant effective remedies for violations of the Bill of Rights is anchored in Article 23(3) of the Constitution, which empowers the Court to grant appropriate relief, including compensation. Such relief is not awarded merely to recompense a litigant for measurable pecuniary loss. Rather, constitutional remedies serve the broader public law objectives of vindicating violated rights, affirming the supremacy of the Constitution, promoting accountability on the part of State actors, and deterring future transgressions. As the Supreme Court observed in Gitobu Imanyara & 2 Others v Attorney General (supra), constitutional damages perform a vindicatory function that transcends the ordinary compensatory principles applicable in private law claims. 90.The Petitioner sought special damages arising from expenses allegedly incurred in defending the criminal proceedings that culminated in his acquittal. The law is settled beyond controversy that special damages must not only be specifically pleaded but must also be strictly proved. Upon examining the record, the Court is satisfied that receipts were produced in support of legal fees amounting to Kshs.470,000/= and charges for certified copies of proceedings amounting to Kshs.1,150/=. These expenditures were directly attributable to the criminal proceedings initiated against the Petitioner and were neither challenged nor rebutted by the Respondents. To that extent, the claim was strictly proved. Any additional sums pleaded but unsupported by documentary evidence cannot be recovered, the requirement of strict proof being a substantive rule of law. Accordingly, the Court awards the Petitioner special damages in the sum of Kshs.471,150/=. 91.The Court must next determine the appropriate award of general damages. It is trite that there exists no precise formula for quantifying compensation for constitutional violations or malicious prosecution. The exercise is necessarily one of judicial discretion guided by principle, precedent and the peculiar facts of each case. Relevant considerations include the nature and gravity of the infringed rights, the duration and extent of the violation, the physical and psychological suffering occasioned to the claimant, the conduct of the offending State agents, and the need to vindicate the Constitution and uphold public confidence in the administration of justice. 92.The violations established in the present case were neither technical nor trivial. The evidence demonstrates that the Petitioner was subjected to physical violence, public humiliation, arbitrary arrest, unlawful deprivation of liberty and a criminal prosecution that persisted for nearly two years before ultimately collapsing at the close of the prosecution case. The indignity of being assaulted and arrested in public was compounded by detention in police custody and the burden of defending criminal charges which, as this Court has already found, lacked any reasonable factual foundation. Beyond the immediate deprivation of liberty, the prosecution exposed the Petitioner to prolonged anxiety, reputational injury, emotional distress and financial expense. Such consequences are neither speculative nor remote; they are the natural and foreseeable incidents of an unlawful prosecution. 93.The Court has considered the comparable authorities cited by the parties. In Jaston Ongule Onyango v Attorney General & Another (supra), the Court awarded Kshs.4,000,000/= as a global sum for unlawful arrest, detention and malicious prosecution. Similarly, in Anthony Murimi Waigwe v Attorney General & 4 Others [2020] eKLR, the petitioner was awarded Kshs.4,500,000/= following unlawful arrest, detention and prosecution which endured for approximately twenty-three months without evidential foundation. While comparable awards provide useful guidance, each case must ultimately be determined on its own facts and circumstances. 94.The Court is alive to the fact that the Petitioner was not subjected to prolonged custodial detention and that the period of detention established on the evidence was approximately sixteen hours. However, the assessment of damages in constitutional litigation and malicious prosecution claims cannot be reduced to the duration of detention alone. To do so would be to ignore the broader constitutional injury suffered by the victim. The present award is not predicated merely upon the period spent in police custody. Rather, it reflects the cumulative effect of the violations established before the Court, namely the physical assault upon the Petitioner, the public humiliation attendant to his arrest, the arbitrary and unlawful deprivation of his liberty, the failure by the arresting officers to inform him promptly of the reason for his arrest as required under Article 49(1)(a)(i) of the Constitution, and the burden of defending criminal proceedings that remained pending for nearly two years before collapsing at the close of the prosecution case. The Court must therefore evaluate the injury holistically and not through the narrow lens of the period spent in police custody. Viewed in that context, the harm suffered by the Petitioner was substantial and extended well beyond the hours spent in detention. The Court has also taken care to ensure that the award does not result in double compensation for the same injury, as the malicious prosecution claim and the constitutional violations arise from the same factual matrix and are therefore addressed through a single consolidated global award. 95.The Court is satisfied that a consolidated global award of Kshs 4,500,000 (Four million Five Hundred Thousand) is appropriate, as the constitutional violations and the tort of malicious prosecution arise from the same factual matrix and constitute a continuous course of unlawful conduct. The award is therefore intended to provide full reparation without duplication under different legal labels. 96.The Petitioner has further prayed for exemplary and punitive damages. The principles governing such awards were discussed in Obongo & Another v Municipal Council of Kisumu [1971] EA 91, where the Court adopted the categories identified in Rookes v Barnard & Others [1964] AC 1129. One such category concerns oppressive, arbitrary or unconstitutional conduct by servants of government. Nevertheless, subsequent constitutional jurisprudence has generally cautioned against the routine award of exemplary damages where adequate compensatory relief has already been granted for unconstitutional conduct. 97.In Gitobu Imanyara & 2 Others v Attorney General [2013] KEHC 6361 (KLR), the Court observed as follows:“On that issue, I share the same thoughts as Majanja, J. in Benedict Munene Kariuki & 14 Others vs The Attorney General Petition Number 722 of 2009 (2011) eKLR, where he stated as follows; ‘I am constrained to depart, from the position taken by my learned brother. In my view, these cases under Section 84 of the Constitution are cases concerning the Constitution. It is unnecessary to consider the element of “unconstitutional action” when the relief is awarded for unconstitutional conduct. It is also clear that the principle in Obongo vs Kisumu Municipal Council (Supra) was a case in tort so that the issue of “unconstitutional action” was an additional factor the Court would consider in awarding exemplary damages. I shall therefore not award exemplary damages.’ 98.Further, in the case of Wachira Waheire vs the Attorney General HC Misc. App. No.1184 of 2003 (O.S.) the Court did not find it appropriate to award aggravated and exemplary damages and stated that;“In the light of the acknowledged change in the government, and the attempts at dealing with human rights violation, we find it inappropriate to award exemplary or aggravated damages.” 99.The Court further stated:“This holding encapsulates my position on awarding aggravated and exemplary damages in cases where unconstitutional action has been challenged in a changed and improving political environment. I must take judicial notice of that fact in today's Kenya and I am satisfied that no benefit was procured by the Moi regime in its obviously unconstitutional actions. Kenya's Government has learnt from its past and the deterrent effect is alive and obvious. I also agree with the Respondents that in the circumstances, exemplary damages are not properly awardable noting the burden to the innocent tax-payer.” 100.This Court adopts the foregoing reasoning. While the conduct established in the present case was undoubtedly unlawful and deserving of judicial censure, the substantial compensatory award already made sufficiently vindicates the Petitioner’s rights, marks the Court’s disapproval of the impugned conduct, and serves the deterrent purpose underpinning constitutional litigation. The circumstances of this case do not warrant a further award of exemplary or punitive damages. The prayer for exemplary damages is therefore declined. 101.The Petitioner has substantially succeeded in the Petition and is entitled to costs. There is no basis upon which the Court should depart from the settled principle that costs ordinarily follow the event. Interest on the award of special damages shall accrue at court rates from the date of filing suit until payment in full, while interest on the award of general damages shall accrue at court rates from the date of this Judgment until payment in full. CONCLUSION 102.For the reasons set out in this judgment, this Court is satisfied that the Petition dated 27th March 2024 is meritorious. The evidence placed before the Court establishes, on a balance of probabilities, that the Petitioner was subjected to arbitrary arrest, detention following that unlawful arrest, physical mistreatment, and a prosecution that was instituted without reasonable and probable cause and was actuated by malice. In the circumstances, the Court finds that the Respondents, through their agents and officers, violated the Petitioner’s rights and fundamental freedoms guaranteed under the Constitution and are liable for the consequential harm occasioned thereby. 103.The Court is further satisfied that the Petitioner has established his entitlement to the declaratory and compensatory reliefs sought, save for the claim for exemplary damages, which has not been demonstrated to be warranted in the circumstances of this case. 104.Accordingly, the final orders are hereby issued as follows:a.A declaration be and is hereby issued that the arbitrary and violent arrest of the Petitioner by police officers on 4th April 2021, forcing him to lie on a public road, stepping on him, without any justifiable reason or giving him any reasons for his arrest, constituted a violation of his fundamental rights to personal freedom and liberty, freedom from all forms of violence, human dignity, freedom from inhuman and degrading treatment, and the rights of an arrested person, guaranteed by Articles 28, 29(a), (c), (f), and 49(1)(a)(i) of the Constitution.b.A declaration be and is hereby issued that the accosting of the Petitioner by police officers on the evening of 4th April 2021, stopping him from proceeding with his journey home, and unlawfully arresting him, was a violation of his freedom of movement guaranteed by Article 39(1) of the Constitution.c.A declaration be and is hereby issued that the detention of the Petitioner at Sarangombe Police Post and Kilimani Police Station from 4th to 5th April 2021, without being given any reasons and without any justifiable cause, was arbitrary, unlawful, and in violation of his fundamental right to personal freedom and liberty guaranteed by Article 29(a) of the Constitution.d.A declaration be and is hereby issued that the charging, arraignment, and prosecution of the Petitioner in Kibera Chief Magistrate’s Court Criminal Case No. E700 of 2021, on false, fabricated, and trumped-up charges, was arbitrary, oppressive, high-handed, an abuse of the criminal law and the process of court, a violation of his rights to human dignity and equal protection of the law guaranteed by Articles 27(1) and 28 of the Constitution, and constituted malicious prosecution.e.Special damages are awarded in the sum of Kshs.471,150.00, to be borne by the Respondentsf.General damages are awarded in the global sum of Kshs.4,500,000.00 for the violation of the Petitioner’s constitutional rights and for malicious prosecution to be borne by the Respondentsg.Costs of the Petition are awarded to the Petitioner and shall be borne by the Respondents.h.Interest on the sum awarded as special damages shall accrue at court rates from the date of filing of the Petition until payment in full.i.Interest on the sum awarded as general damages shall accrue at court rates from the date of this judgment until payment in full.Orders accordingly.File Closed Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.BAHATI MWAMUYE MBSJUDGEIn the presence of: -Counsel for the Petitioner – Mr. Mbugua MureithiCounsel for the Respondents - AbsentCourt Assistant – Mr. Martin and Mr. Austin