[2015] KEHC 8281 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.414 OF 2014

BETWEEN

ISAIAH WAWERU NGUMI..………………………………………........……...PETITIONER

AND

THE ATTORNEY GENERAL………………………...……...……………. 1ST RESPONDENT

THE O.C.S KIKUYU POLICE STATION……..….........…………..……….2ND RESPONDENT

THE O.C CRIME-KIKUYU POLICE STATION…...........………………….3RD RESPONDENT

JOSEPH GITHUA NGUMI……………....…………………………………..4TH RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS………….............……….5TH RESPONDENT

JUDGMENT

Introduction

The Petitioner Isaiah Waweru Ngumi is apprehensive of an imminent arrest by the 2nd and 3rd Respondents. He has therefore filed the Petition dated 22nd August 2014, seeking the following orders;

“(1) The 1st, 2nd and 3rd Respondent be restrained against arresting, detaining, and or charging the Petitioner without first lawfully notifying this Honourable Court of the grounds for so doing.

(2) The 4th Respondent be restrained against using the 1st, 2nd and 3rd Respondents for illegal purposes against the Petitioner and or harassing, terrorizing and intimidating the Petitioner.

(3) The Respondents be compelled to pay the costs of this Petition.”

Petitioner’s case

From the Petition and Supporting Affidavit, it is the Petitioner’s case that on 14th August 2014, there was a meeting held at the Kikuyu Location Chief’s Office at Nderi between the Petitioner and his siblings concerning the estate of their late father. Subsequent to that meeting, the 4th Respondent a brother to the Petitioner made a complaint to the 2nd and 3rd Respondents to the effect that the Petitioner intended to harm him. The 2nd and 3rd Respondents thereafter sent police officers in the company of the 4th Respondent to arrest the Petitioner but they did not find him at his home. The police officers then sent a message to his phone and stated that they would return at a later date to arrest him but failed to specify any offence the Petitioner had allegedly committed.

It is the Petitioner’s case that the 4th Respondent is using the 1st, 2nd and 3rd Respondents for ulterior motive and in a bid to deny him his rightful participation in the succession proceedings for his late father’s estate. He alleges that he is fearful of his liberty and life as the 4th Respondent, with some other family members, have caused him to be falsely charged for malicious damage in Criminal Case No.139 of 2009 at Kikuyu Magistrate’s Court but he was acquitted in July 2011. Later they also filed ELC. No.342 of 2012 against him all in a bid to stop him from participating in the succession proceedings aforesaid.

It is also the Petitioner’s contention that the 4th Respondent has behaved most callously and with hostility towards him and that on 20th August, 2014 the 2nd Respondent went to his residence and dared him to harm the 4th Respondent causing the Petitioner to lock himself up in his house and creating fear and mental anguish to his family.

The Petitioner claims further that the 4th Respondent’s conduct has deprived the Petitioner of his freedom as he has caused him to leave his home and has been forced to seek temporary residence elsewhere at a cost.

It is therefore the Petitioner’s case that he has been injured in his reputation and has suffered loss of freedom due to fear and he relies on the decision of Sonia Kwamboka Rasugu vs Sandalwood Hotel and Resort Ltd & another Petition No. 156 of 2011 where the court awarded damages for unlawful restriction to personal freedom which it found to have been unconstitutional. He therefore claims general damages of Kshs.435,000. He also sought for an award of costs of Kshs.135,000 and the orders reproduced elsewhere above.

The 1st, 2nd and 3rd Respondents’ case

The 1st, 2nd and 3rd Respondents oppose the Petition through the replying affidavit of Corporal Evans Omanga sworn on 3rd November, 2014. They did not however make any legal arguments on the Petition.

Corporal Omanga deponed that on 15th August, 2014 at Kikuyu Police Station, he received a report recorded by the 4th Respondent which alleged that on 14th August, 2014, his brother Isaiah Waweru Ngumi, had abused and threatened him by use of words which he construed as meaning that his life was in danger. He thereafter recorded statements from the 4th Respondent, Esther Waithera Ngumi and Ruth Njeri Kinyanjui, who were all present at the meeting held in the Chief’s office. He realized that the statements were consistent.

He further stated that on 21st August, 2014 he proceeded to Nderi area, the Petitioner’s home, together with the complainant, the 4th Respondent, to inquire into the alleged threat. They did not find him at home and left a message for him to contact the D.C.I.O Kikuyu Police Division on the same issue.

He stated that at the time the Petitioner filed his Petition, he had not been informed that he would be arrested or charged and was only needed to record a statement so as to start the investigation process. He claimed that he eventually made a statement on 18th September, 2014.

Subsequently, the Director of Public Prosecutions (DPP) reviewed the file concerning the inquiry into the threats issued by the Petitioner against the complainant. Upon the review, the DPP decided not to proceed with the prosecution and recommended that the matter be solved amicably as it was a family disagreement.

Corporal Omanga averred that Kikuyu Police Station, through its officers, including the 2nd and 3rd Respondents, have a constitutional duty to conduct independent investigations based on a report made by a member of the public and make all inquiries to ensure that the lives and properties of citizens are protected. That is what happened in the present case and nothing unlawful was done by any of the said Respondents.

It is his contention therefore that the Petitioner’s Petition is premature and an abuse of the Court process and that since it does not disclose any constitutional infringement, it should be dismissed.

The 4th Respondent’s case

The 4th Respondent raised certain issues on the Petition and they are summarized herebelow;

Firstly, that he was not involved in bringing false charges against the Petitioner and that he was not a party to the proceedings brought against the Petitioner in Criminal Case No.139 of 2009. He also claims that in ELC NO. 342 of 2002, the Petitioner’s siblings have sought inter alia a temporary injunction, to stop him from interfering with their deceased father’s estate and that the Petitioner has made and continues to make unsubstantiated allegations against the 4th Respondent.

It is the further submission of the 4th Respondent that a police officer has a right to arrest an individual without a warrant or even informing the Court of his intention to do so when there are reasonable grounds that such an individual had committed a cognizable offence.

He adds that he filed his complaint to the police having feared for his life as is required under the law and it was upon the police to take any further action and investigate his complaint as prescribed under the law. In doing so, he stated, the police are not under his instruction or direction.

As regards the Petitioner’s claim for damages, the 4th Respondent submits that the Petitioner had not established any specific tort which had been committed by the 4th Respondent and therefore no award of general and special damages should be made against him. That the Petitioner had also not adduced any evidence to show any inconvenience suffered and he relies on the English case of Bonham Carter vs Hyde Park Ltd (1984) 64 TLR 177where it was held that in an action for damages, it was not enough to write particulars but the particulars must also be proved.

As regards costs, he submitted that costs follow the event and in any event since the Petitioner had never been arrested by the 2nd and 3rd Respondents and the latter have indeed indicated that they would not arrest him, he urges the Court to dismiss the Petition with costs to the 4th Respondent.

The 5th Respondent’s case

The 5th Respondent relied on the Affidavit of Corporal Evans Omanga aforesaid and also filed written submission on points of law.

His case is that the Petitioner had failed to demonstrate that any of his rights had been infringed and that the acts complained of are imagined, fictitious and speculative based on misconceived fear. He relies on the case of Annarita Karimi Njeru vs Republic (1976-1980) 1 KLR 1272 where it was held that in a Petition to enforce fundamental rights and freedoms, the Petitioner must state with clarity the rights infringed, the facts relied upon and the manner in which the Constitution had been violated. That the Petitioner had failed to meet that test.

It is also his submission that the Police Service cannot be faulted for acting within the law and within their mandate and in the instant case that assertion is true.

He concluded that since the Petitioner had failed to prove constitutional infringements that warrant the intervention of the Court the Petition ought to be dismissed.

Determination

Elsewhere above, I have stated the facts leading to the fling of this Petition. It is not disputed that there was meeting held on 14th August 2014, at Kikuyu Location Chief’s office as between the Petitioner and his siblings and thereafter it is alleged that the Petitioner threatened the 4th Respondent who subsequently made a report at the 2nd and 3rd Respondents’ police station. Upon the report being made, the 4th Respondent and his witnesses recorded their statements with the police. Thereafter, the 2nd and 3rd Respondents visited the Petitioner’s home and the Petitioner being apprehensive of arrest filed this Petition seeking orders restraining them from arresting him. The issue now before me is whether any of the Petitioner’s constitutional rights have been infringed and whether he is entitled to the orders set out above.

In that regard, I will start by looking at the constitutional powers of the police and thereafter determine whether in actualizing their mandate there was a violation of the Petitioner’s rights as alleged.

Article 243 of the Constitution establishes the National Police Service. The objects of the National Police Service are set out under Article 244in the following terms;

The National Police service shall –

(a) Strive for the highest standards of professionalism and discipline among its members;

(b) Prevent corruption and promote and practice transparency and accountability;

(c ) Comply with constitutional standards of human rights and fundamental freedoms;

(d) Train staff to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity; and

(e) Foster and promote relationships with the broader society. (Emphasis added)

Article 245(8)then empowers Parliament to enact legislation giving effect to the provisions of that Article and consequently, Parliament enacted the National Police Service Actas Act No.11A of 2012. The functions of the police are found at Section 24 of the Act, and are as follows;

Provision of assistance to the public when in need;

Maintenance of law and order.

Preservation of peace;

Protection of life and property;

Investigation of crimes;

Collection of criminal intelligence;

Prevention and detection of crime;

Apprehension of offenders;

Enforcement of all laws and regulations with which it is charged; and

Performance of any other duties that may be prescribed by the Inspector-General under this Act any other written law from time to time.

It is evident from a casual reading of the above Section that under the Constitution and the law, the police have a general duty to apprehend offenders and that includes the Petitioner if he is deemed as such.

In addition to the above, under Section 29 and89 of the Criminal Procedure Code (Chapter 75 Laws of Kenya) the police have the power to arrest any person when the police have reasonable basis to believe that an offence had been committed and in doing so a police officer has the power to arrest an individual with or without a warrant of arrest.

In that context, the Petition before me is said to be premised on Articles 22(1), 28, 29, 39and40of theConstitution. But where are the constitutional issues I am called upon to determine? How does the arrest of the Petitioner per se raise constitutional issues? Lodging of a complaint, investigations, arrest and arraignment of a person in Court are known processes in the criminal justice system and do not amount to infringement of fundamental rights and freedoms of a party per se.

Further, this Court has in the past held that a Petitioner alleging a violation of his rights must state the provisions of the Constitution which have been violated, and the manner in which the stated provision has been violated. The principle that Constitutional Petitions must also be pleaded with some reasonable precision was set in the case of Annarita Karimi Njeru vs Republic (1976-1980) 1 KLR 1272 and has been upheld by the High Court in many of its decisions.

Recently also, the Court of Appeal has restated the importance of having the claims of violation of constitution drafted with some reasonable precision in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others Civil Appeal 290 of 2012, it tendered itself as follows;

“We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by a Court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”

The Court went on to express itself as follows;

“Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard are a tenet of substantive justice as they give fair notice to the other party. The Principle in Anarita Karimi Njeru(supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”

I am in agreement with the learned judges and looking at the pleadings before me, I am unable to see the constitutional issues I am called upon to determine. None of the Petitioner’s alleged complaints disclose in any way the manner in which the Constitution has been violated. Apart from stating the Constitutional provisions on the face of the Petition, the Petitioner has not quoted any provision in the body of the Petition that has been violated and how it has been violated.

Further, the Petitioner has in his Petition sought orders to restrain the 2nd and 3rd Respondents from arresting, detaining or charging him. Those orders cannot issue and it is obvious why. The Respondents explained to the Court in any event that the 5th Respondent has already determined that the Petitioner would not be charged in any Court and instead recommended that there be an amicable settlement between the family members. Why should the above orders issue in the circumstances?

As regards the issue of damages, this Court has not found any violation of the Petitioner’s fundamental rights and accordingly the Prayer for damages is moot.

On the issue of costs, I am of the view that the best order would be one necessitating each of the parties to bear their costs given that the dispute before me largely involved family members.

In the circumstances the Petition before me is dismissed and each Party shall bear its own costs.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 17TH DAY OF SEPTEMBER, 2015

ISAAC LENAOLA

JUDGE

In the presence of:

Miron – Court clerk

Mr. Murang’a for 5th Respondent

Miss Kinyua holding brief for Mr. Saende for 4th Respondent

Mr. Okemwa holding brief for Mr. Khamatu for Petitioner

Mr. Mohamed holding brief for Miss Muchiri for 1st, 2nd and 3rd Respondents

Order

Judgment duly delivered.

ISAAC LENAOLA

JUDGE

17/9/2015