[2013] KEHC 7033 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COUT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 104 OF 2009

BETWEEN

JAMES ODEMBA

AKONG'O.........................................................................PETITIONER

AND

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

JENNIPHER AOKO OMONDI.......................................2ND RESPONDENT

APC JULIUS NARERIO..................................................3RD RESPONDENT

APC ADEN JARSO.........................................................4TH RESPONDENT

JUDGMENT

Introduction

The Petitioner, James Odemba Akong'o, seeks various orders and declarations with regard to the alleged torture, inhuman and degrading treatment he was subjected to by the 2nd Respondent, a private citizen and the 3rd and 4th Respondents who are police officers based at Kitengela Chief's Camp on 5th October 2005. He alleged that his rights as guaranteed under the Repealed Constitution in Sections 70, 72 and 74 were violated following the assault inflicted upon him by the 2nd, 3rd and 4th Respondents. In his Petition he seeks the following orders;

“a) A declaration that his fundamental rights and freedoms from torture, inhuman and degrading treatment as protected by Section 74 of the Constitution of the Republic of Kenya, security of the person and protection of the law as protected by Section 70 of the Constitution of the Republic of Kenya and personal liberty as protected by Section 72 of the Constitution of the Republic of Kenya have been violated by the Respondents.

b) General damages for pain and suffering.

c) Exemplary damages for gross abuse of office and power by the 3rd and 4th Respondent's for which the 1st Respondent is vicariously liable.

d) Special damages for costs of treatment and processing of court proceedings from the magistrate's court proceedings from the magistrate's court amounting to Kshs.40,000/-.

e) Future medical attention.

f) Costs of and incidental to these proceedings.”

The Petitioner's case

From the Petition and Affidavit in support of the Petition sworn by the Petitioner on 13th February 2009, the facts are straight forward; On the 5th of October 2005, at around 5. 00pm, the Petitioner was given a letter by the 2nd Respondent requiring him to report at Kitengela's Chief Camp on the following day, 6th of October 2005. And on that day, he went to the Chief's Camp at around 10. 00am and found the Assistant Chief who told him that he was not the author of the letter he had been served with and he referred the Petitioner to the houses of the Administration Police Officers, where he found the 2nd Petitioner together with the 3rd and 4th Respondents. When he showed them the letter, they demanded to know whether he was the 'tough headed Odemba'. Upon confirming that he was “Odemba”, the 3rd and 4th Respondents proceeded to handcuff him and then begun assaulting him using a short club, rubber whip and hoe stick. In the course of the beatings, the Petitioner claimed that he was hit at the scrotum leading to his permanent state of impotence. He became unconscious as a result of the injuries and when he came to, he found himself on the 7th October 2005 at Kajiado District Hospital where he was treated and later transferred to Kenyatta National Hospital for specialized treatment. He claimed that he spent Kshs.40,000/- on hospital bills and upon recovery, he made a report to the Police whereupon the 2nd Respondent was arrested and criminal proceedings commenced against her in Kajiado SRM Criminal Case No. 428 of 2006. It appears that at the close of the prosecution case, the trial magistrate found that the 2nd Respondent had a case to answer and a further finding that the Administration Police Officers, the 3rd and 4th Respondents ought to have been charged jointly with the 2nd Respondent. Perhaps, based on that finding, when the case came up for defence hearing, the Prosecution applied to withdraw the case under Section 82(1) of the Criminal Procedure Codeand theCourt allowed the application. Consequently, the case was terminated and later on, the Prosecution instituted Nairobi Criminal Case No. 2014 of 2007, Republic v Adano Jarso Salesa & 2 Others where the 2nd, 3rd and 4th Respondents were charged with the offence of assault contrary to Section 234of the Penal Code. The trial magistrate found them guilty and they were all subsequently convicted of the charge.

The Petitioner contends that the treatment he received at the hands of the 2nd, 3rd and 4th Respondents together with his detention at the Kitengela Road Block police post constituted torture, inhuman and degrading treatment in contravention of Section 74 of the Repealed Constitution. He also claimed that the treatment constituted a breach of his entitlement to security of persons and protection under the law as guaranteed by Section 70 of the Repealed Constitution. He further alleged that he was deprived of his personal liberty contrary to the provisions of Section 72 of the Repealed Constitution and through his learned counsel, Mr. Ongoya, the Petitioner urged this Court to find that his constitutional rights as aforesaid were violated and prayed for an award of damages in the sum of Kshs.3,000,000/-. He also prayed for exemplary damages in the sum of Kshs.2,000,000/- and special damages of Kshs.40,000/-. He relied on the case of Harun Thungu Wakaba & Others v Attorney General, Miscellaneous Application No.1411 of 2004 where the Court held that the Plaintiffs' constitutional rights as provided under Sections 71, 72, 74, 77, 78, 7, 80and82 were violated and awarded each of the Petitioners general damages ranging from Kshs.1 Million to Kshs.3 Million.

2nd Respondent's case

In response to the Petition, the 2nd Respondent, Jennifer Aoko Omondi filed a Replying Affidavit sworn on 9th April 2009. She denied assaulting the Petitioner and also denied violating the Petitioner's fundamental rights and freedoms. She instead made counter accusations against the Petitioner and stated that the Petitioner abused her and hauled insults at her, and the 3rd and 4th Respondents who had witnessed the alteration and apprehended him. That therefore the arrest was within the law and she claimed that she does not have the power or authority to protect the Petitioner's fundamental rights and freedoms as that responsibility and power vests in the State. In any event, she claimed that if the Petitioner has any remedy available, it lies in tort and cannot be by instituting a Petition for infringement of fundamental rights and freedoms. Lastly, she claimed that the events of 6th October 2005, do not constitute a breach or violation of fundamental rights and freedoms enshrined in the Constitution and prayed that the Petition be dismissed with costs.

The 1st, 3rd and 4th Respondents case

The 1st, 3rd and 4th Respondents did not file any response to challenge the facts in the Petition but they filed Submission stating that the Petition does not disclose any cause of action against them. Their advocate further contended that the alleged actions were not committed in the cause of employment of the 3rd and 4th Respondents and added that the Petitioner ought to have filed a civil suit against the 3rd and 4th Respondents if he believed there was a cause of action against them. He urged the Court to dismiss the Petition.

Determination

Before I turn to examine whether the facts as presented by the Petitioner have established a violation of fundamental rights and freedoms, I must state right at the onset that the Petition before me is expressed to be brought under Section 84(1) of the Repealed Constitution. This section enabled any person who alleged a violation or contravention of the provisions of the Constitution in the Bill of Rights to apply to the High Court for redress, and the High Court had jurisdiction to hear and determine the application made thereto. The Petitioner has thus correctly in my view approached this Court for a redress of violation of his constitutional rights. The contention by the 2nd Respondent that the Petitioner's remedy lies in tort cannot be true. The Petitioner has claimed a violation of his constitutional rights as stipulated underSection 72and74of the Repealed Constitutionand is properly before the Court underSection 84aforesaid.

Protection from Torture and other Cruel and Degrading Treatment

Turning now to the Petitioner's claim that his right not to be subjected to torture and other cruel and degrading treatment protected under Section 74(1)of theRepealed Constitution was violated by the Respondents the protection against torture was provided for under Section 74 (1) of the Repealed Constitution which stated as follows;

“No person shall be subject to torture or to inhuman or degrading punishment or other treatment.”

The Petitioner claimed that he was physically attacked and assaulted by the 2nd, 3rd and 4th Respondent and as a result of that assault he suffered permanent state of impotence. He produced a medical report from Kajiado District Hospital dated 6th October 2006 which indicates that he suffered bruises on the left middle finger, on the posterior aspect of the chest and blunt injury to the testis. It also indicated that he has now developed inability to erect which is a permanent disability and will have to stay without enjoying sex. The medical report is sufficient to indicate that the Petitioner suffered permanent injuries at the hands of the 2nd, 3rd and 4th Respondent who were later found to have indeed committed the act. The question is whether, as the Petitioner alleges, what he was subjected to amounts to torture and cruel and degrading treatment which was prohibited under Section 74 of the Repealed Constitution

The United Nations Convention Against Torture and other Cruel, inhuman or degrading Treatment or Punishment defines torture as;

“any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.

The Grand Chamber of the European Court of Human Rights in the case of Jalloh v Germany, Application No. 54810 of 2000has also held that;

“treatment is inhuman when it is premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been considered degrading when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or when it was such as to drive the victim to act against his will or conscience. In order for a punishment or treatment associated with it to be 'inhuman' or 'degrading', the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.”

Back home, I am in agreement with the Petitioner that Okwengu, J. in Harun Thungu Wakaba & Others v Attorney General (supra) held that the actions of being stripped naked, assaulted with leather whips, broken chairs, metal bars, slaps, kicks and blows and being kept in a dark cell, were all acts of torture which are in violation of the right to protection from inhuman treatment as provided under Section 74(1) of the Repealed Constitution.

From the medical report availed to this court, I am satisfied that the Petitioner was assaulted by the 2nd, 3rd and 4th Respondents. Even if, the Petitioner had committed an offence, which does not seem to be the case in this Petition, the UN Convention against Torture and other Inhuman and Degrading treatment, prohibits in absolute terms torture or inhuman or degrading treatment or punishment. No derogation from the prohibition it is permissible even in the event of a public emergency or any threat. It is thus clear to my mind that; “Nothing can justify torture under any circumstances”.

In the circumstances, I find that based on the evidence before the Court the Petitioners' injuries were caused by the 2nd, 3rd and 4th Respondents and the beatings inflicted on the Petitioner as punishment for reasons known to the trio. Where such acts are committed by police officers as were the 3rd and 4th Respondents, acting in their official capacity and in their course of duty and in a police station, they all squarely fall within the definition of torture as set out above. Not only is torture prohibited by the Constitution but the Police ActatSection 14A expressly prohibits police officers from subjecting any person to acts of torture, cruel, inhuman or degrading treatment. I therefore find and hold that the Petitioner was subjected to torture, inhuman and degrading treatment in contravention of his rights as provided for under Section 74 of the Repealed Constitution

Rights to personal liberty under Section 77 of the repealed constitution

The Petitioner alleged that his right to personal liberty was violated by the Respondents contrary to Section 72 of the Repealed Constitution. This Section provided as follows;

(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases -

(a) in execution of the sentence or order of a court, whether established for Kenya or some other country, in respect of a criminal offence of which he has been convicted;

(b) in execution of the order of the High Court or the Court of Appeal punishing him for contempt of that court or of another court or tribunal;

(c) in execution of the order of a court made to secure the fulfilment of an obligation imposed on him by law;

(d) for the purpose of bringing him before a court in execution of the order of a court;

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Kenya;

(f) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;

(g) for the purpose of preventing the spread of an infectious or contagious disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community;

(i) for the purpose of preventing the unlawful entry of that person into Kenya, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Kenya or for the purpose of restricting that person while he is being conveyed through Kenya in the course of his extradition or removal as a convicted prisoner from one country to another; or

(j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Kenya or prohibiting him from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during a visit that he is permitted to make to a part of Kenya in which, in consequence of the order, his presence would otherwise be unlawful.

(2) A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

(3) A person who is arrested or detained -

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court

(a) for the purpose of bringing him before a court in execution of the order of a court; or

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

(4) Where a person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further held in custody in connexion with those proceedings or that offence save upon the order of a court.

(5) If a person arrested or detained as mentioned in subsection (3) (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(6) A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that other person.”

As stated above, The Petitioner went to Kitengela Chief's Camp on 6th October 2005 at around 10. 00 am. He was beaten and fell unconscious and found himself at Kajiado District Hospital on the following day, 7th October 2005. This being a constitutional Petition, the Petitioner is duty bound to state and demonstrate the provisions of the Constitution which have been violated and the manner in which they have been violated. See Anarita Karimi Njeru v Republic (1976-80) 1 KLR 1272.

Sadly, with the facts and pleadings before, me I am unable to determine whether the Petitioner's right to liberty has been violated. It is not enough for the Petitioner to claim a violation, he must set out the facts in support of the constitutional right's violation he alleges. He too, must demonstrate with some degree of precision the manner in which that Section of the Constitution has been violated. With that in mind, I am unable to find a violation of the Petitioner's right to liberty as stated under Section 72of the Constitutionbecause I do not have any facts to support that contention.

Damages

Having found that the Petitioners right to protection from torture, inhuman and degrading treatment was violated by the Respondents as stated above, I must now determine the amount of damages payable to the Petitioner. The Petitioners prayed for general damages of Ksh. 3,000,000/- exemplary damages of Kshs.2000,000/- and special damages of Kshs.40,000 respectively.

In Dominic Arony Amolo (supra), the Court decided to award a lumpsum global compensation in general damages and stated as follows;

“For our part, we have two options both of which are attractive and reasonable in our view. The first is an award of a lumpsum for all the breaches cited elsewhere and posit that, because the breaches happened almost within a defined period and within the defined area of E Block at Kamiti Prison, it would be a fair proposition to award such lumpsum figure in damages. A further reason to be advanced in support of this position is that the breaches happened contemporaneously with each other and it would be difficult, nay impossible to separate each of them and give a fair and reasonable award in respect of each. The alternative approach is to award damages for each of the heads of breach of Fundamental Rights. The difficulty with the latter in the circumstances of this case has been expressed and this may not be the right place to explore the efficacy of such an approach. We must as we hereby do, come to the firm conclusion that a lumpsum figure in damages would be the better, the fairer and the more reasonable approach to take in this matter. Having said so and taking into account all matters raised herein and aware of the controversial nature of the issue before us, we have determined that in our view, an award of Kshs.2,500,000/- would be a fair and reasonable award in damages in the novel situation arising from this case.”

This approach of lump sum compensation, has since been most attractive in torture cases. Recently, the High Court has also stated its view on the issue of exemplary damages and has declined to grant exemplary damages for torture violations as they amount to violation of constitutional rights. See Benedict Munene Kariuki and 14 Others -v- the Attorney General High Court Petition No. 722 of 2009, Samuel Waweru Kariuki (supra). I see no reason to depart from this reasoning with regard to exemplary damages because in the present case, the 2nd, 3rd and 4th Respondents have already been criminally punished for their actions and that is sufficient in the circumstances.

With that in mind, and alive to the fact that the Petitioner has suffered a permanent impotence disability which neither this Court nor the Respondent can ever offer enough redress, and doing the best I can in the circumstances, I believe a global award of Kshs.4,000,000/- in respect of all violation of the right of protection from torture, inhuman and degrading treatment is sufficient.

As regards special damages, I am alive to the fact the general practice is that a party that seeks special damages must prove the same. Sadly, the Petitioner failed to led evidence or documents that would establish that he incurred hospital expenses to the sum of Kshs.40,000/- In the circumstances, I decline to make an award for special damages.

As regards, costs, the Petitioner shall also have the costs of this Petition plus interest on damages from the date of judgment until payment in full.

In conclusion, I must state that the State and its agents needs to take the torture claims made against it with some seriousness. It is a matter of concern to this Court that the Petitioner was assaulted by police officers and the State failed to take appropriate disciplinary action against the responsible officers so as to deter such future violations. The State must become alive to its obligation to protect the human rights of its citizens, particularly from violation by its officers.

In the end, I shall enter judgment jointly and severally against the Respondents in the following terms;

Prayer (a) of the Petition is granted.

Prayers (c) and (d) of the Petition are dismissed.

The Petitioner is awarded Kshs.4,000,000 as general damages

Costs of the Petition are awarded to the Petitioner plus interest thereon.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Mutiso for 2nd Respondent

Mr. Wambua holding brief for Mr. Onguta for Petitioner

Order

Judgment duly read.

ISAAC LENAOLA

JUDGE