[2017] KEHC 3872 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

PETITION NO. 1 OF 2017

IN THE MATTER OF: ARTICLES 2 (1) & (4), 10 (1) & (2), 19 (1) & (2), 20 (1) & 2, 21 (1) 22 (1), 27, 28, 29 (D), 48, 49 (1) (F), 50 (1), 165 &258 OF THE CONSTITUTION, 2010

AND

IN THE MATTER OF: VIOLATION AND/OR INFRINGEMENT ON THE FUNDAMENTAL RIGHTS OF THE PETITONER

AND

IN THE MATTER OF: THE ARREST AND DETENTION FOR MORE THAN 24 HOURS

AND

IN THE MATTER OF: JOSEPH KIPKEMBOI ARIAMBE

AND

IN THE MATTER OF: ALLEGED THEFT BY SERVANT

AND

IN THE MATTER OF: KISII CMCR NO. 321 OF 2017

AND

IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS & FUNDAMENTAL FREEDOM) PRACTICE AND PROCEDURE RULES, 2013

BETWEEN

JOSEPH KIPKEMBOI ARIAMBE.....................................................................PETITIONER

VERSUS

THE OFFICER COMMANDING POLICE STATION, (O.C.S)................1ST RESPONDENT

THE ANTI-BANK FRAUD UNIT..............................................................2ND RESPONDENT

THE OFFICER COMMANDING POLICE DIVISION,

(O.C.P.D) KISII CENTRAL POLICE DIVISION ...................................3RD RESPONDENT

THE INSPECTOR GENERAL OF POLICE............................................4TH RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS (DPP)......................5TH RESPONDENT

THE HON. ATTORNEY GENERAL........................................................6TH RESPONDENT

NATIONAL BANK OF KENYA LIMITED...............................................7TH RESPONDENT

THE HON. CHIEF MAGISTRATE’S COURT, KISII LAW COURTS....8TH RESPONDENT

RULING

1. In this petition dated 3rd February 2017 and amended on 10th February, 2017 the petitioner who describes himself as an employee of the 7th respondent at its Kisii Branch Operation Manager. He brings this petition against all the 8 respondents and seeks the following orders:

a) Declaration that the Petitioner herein is entitled to the benefit of and protection under the Constitution, 2010, in the same manner as all other Citizens of the Republic of Kenya in line with the provisions of Article 20 (1) & (2) thereof.

b) Declaration that the Arrest, Remand and/or Detention of the Petitioner herein in Police |Custody for a period in excess of 6 days w.e.f 1stFebruary 2017 to the 6th day of February 2017, amounts to and/or constitutes violation of the petitioner’s Constitutional and Fundamental Rights as established and sanctioned vide Article 49 (1) (f) of the constitution, 2010.

c) Declaration that the intended charges, vide KISII CMCR NO. 321 OF 2017, arraignment in Court and/or prosecution of the Petitioner herein, founded and/or anchored on the Complaint leading to the arrest and detention of the petitioner for period in excess of 6 days w.e.f 1st February 2017 to the 6th day of February 2017, are unconstitutional, unlawful, illegal an void for all intent and purposes.

d) In the alternative and without prejudice to paragraph (c) hereof, a declaration that any Charges vide KISII CMCRA NO. 321 FO 2017 that may have been preferred against the petitioner and anchored on the arrest and detention on instance of the 7th respondent in excess of the statutory period are invalid.

e) An order of Judicial Review in the nature of Certiorari to bring unto this Honourable Court and Quash the Charges, mounted and/or preferred against the Petitioner herein and the Proceedings and decision, if any, vide KISII CMCR NO. 321 OF 2017, to the extent that the arrest and detention preceding the preference of the charges and the arraignment in court, violated and/or infringed upon the petitioner’s Constitutional and Fundamental Rights.

f) Permanent injunction restraining the respondents, more particularly, the 1st-4th respondent from (sic) continue to hold and/or detain the petitioner herein, either on the allegations fronted and/or lodged by the 7th Respondent or at all.

g) An order of Judicial Review in the nature of prohibition, to prohibit the 8th Respondent from entertaining, proceeding with, hearing, adjudicating upon and/or rendering a Decision in the Criminal Charges levied against the Petitioner vide KISII CMCR NO. 321 OF 2017, anchored on and/or founded upon the complaint leading to the arrest and detention of the petitioner for a period in excess of 6 days, contrary to and in contravention of the Constitution, 2010.

h) Payment of General and Exemplary Damages on account of Breach, Violation and/or infringement of the Fundamental and Constitutional Rights of the petitioner.

i) Costs of the petition be borne by the Respondents jointly and/or severally.

j) The Honourable court be pleased to issue such orders and/or writs as the Court may deem fit and/or expedient.

2. Concurrently with the petition, the petitioner also filed a Notice of Motion application dated 3rd February 2017 which was also amended on 10th February 2017, and which is the subject of this ruling wherein he sought the following orders:-

1. Spent.

2. Pending the hearing and determination of the instant application, the Honourable Court be pleased to grant an Interim Conservatory Order in the nature of prohibition, prohibiting the Respondents either by themselves, agents, servants and/or anyone acting under the instructions and/or Directions of the said Respondents from proceedings with the criminal charges against the petitioner/applicant herein vide KISII CMCR NO. 321 OF 2017 and/or prosecuting the petitioner/applicant on the basis of any Criminal charges arising from and/or anchored on the complaint leading to the arrest and detention of the petitioner/applicant in police custody for a period in excess of 6 days.

3. The Honourable Court be pleased to grant a Conservatory Order in the nature of prohibition, prohibiting the Respondents either by themselves, agents, servants and/or anyone acting under the instructions and/or directions of the said Respondents from proceeding with the Criminal Chargesagainst the petitioner/applicant herein vide KISII CMCR NO. 321 FO 2017 and/or prosecuting the petitioner/applicant on the basis of any Criminal Charges arising from and/or anchored on the complaint leading to the arrest and detention of the petitioner/applicant in police custody for a period in excess of 6 days, in violation of the provisions of Articles 27, 28 and 49 of the Constitution, 2010, pending the hearing and determination of the petition.

4. The Honourable Court be pleased to give appropriate directions and/or orders towards the expeditious hearing and disposal of the petition herein.

5. Costs of this application be borne by the Respondent.

6. Such further and/or other orders be made as the court may deem fit and expedient.

3. The application is supported by the petitioner’s affidavit dated 10th February 2017 wherein he deposes that the was on 1st February 2017 arrested and remanded at Kisii Police station over allegations pertaining to loss of money at the 7th Respondent’s Kisii Branch upto 6th February 2017 which was a period exceeding the Constitutional timelines that requires that a suspect be arraigned in court with a period of 24 hours of arrest and therefore he states that his constitutional and fundamental rights were breached and further, that he was subjected to cruel and in human treatment.

4. He contends that he was eventually arraigned before the Chief Magistrate at Kisii Law Courtson 6th February 2017 and charged vide Kisii CMCR No. 321 of 2017 as shown in the charge sheet attached to the affidavit and marked “JKA1”.

5. It is the applicant’s case is that his detention in police custody for a period of more that the statutory 24 hours constitutes a violation of his Constitutional Rights and therefore, the criminal prosecution that followed his wrongful detention vide Kisii CMCR No. 321 of 2017 is invalid, unconstitutional and hence a nullity. He further contends that the conduct of the respondent is a fraught with abuse of office, and violation of fundamental and constitutional rights and does not augur well for the rule of law and general administration of justice. The applicant further contends that this is therefore a fit and proper case for the grant of conservatory orders sought so as to protect and vindicate his Constitutional and fundamental Rights and by extension, the Rule of Law.

6. The motion was opposed by the respondents through the replying affidavits of Maureen Mbelete, the prosecuting counsel in the office of the 5th Respondent and IP Eliud Byama, the Deputy Officer Commanding Police Station, Kisii Central Police Station.

7. The respondents concede that indeed, the applicant was arrested on 1st February 2017 and arraigned in court on 6th February 2017, but contend that the delay in arraigning the applicant in court does not negate the fact that he had been implicated in the theft of the 7th respondent’s money amounting to Kshs. 16,158,200/=.

8. Byama attributed the delay in arraigning the applicant in court to the fact that the applicant was on 2nd February 2017 collected by agents from the 2nd Respondent and transported to Kisumu for further investigations.

9. The 7th respondent opposed the application through the affidavit of one Augustine Wanjala dated 20th March 2017 wherein he deposes that the 7th respondent lodged a complaint with 1st and 2nd respondent upon discovering that it had lost huge sums of money and upon getting compelling evidence of the applicants involvement in the said loss.

10. He states that the 7th respondent has overwhelming evidence against the applicant in the Criminal case No. 321 of 2017 before the Chief Magistrates Court at Kisii and therefore, the conservatory orders sought ought not to be granted as they will prejudice the said criminal case.

11. The 7th respondent states that the appropriate remedy for violation of constitutional rights in this case would be the issuance of declaratory orders or an award of damages for reasonable compensation should he applicant demonstrate that he suffered any loss following the alleged unlawful detention.

12. The application was argued orally in court on 11th April 2017 when Mr. Oguttu advocate for the applicant reiterated the contents of the applicant’s averments contained in the affidavit in support of the application to the effect that the applicant was detained in police custody for a period exceeding the statutory 24 hours rule which rule, he submitted, was cast in stone.

13. He also submitted that Article 20 (1) of the Constitution binds all state organs and persons who must all adhere to the provisions of the Constitution. He accused the 7threspondent of mounting a complaint and thereafter failing to follow it up so as to ensure that the complaint was dealt with within the time and parameters set by the law. He emphasised that under Article 2 (1) of the Constitution, any action which contravenes the constitution is invalid and therefore, the arrest and detention for a period in excess of 24 hours on which the criminal charges was anchored was invalid and the said invalidity negates the validity of the said charges.

14. The applicant’s argument was that his prayer for interim conservatory orders was meant to abate any criminal prosecution anchored on an invalidity.

15. The applicant relied on the decision in Albanus Mwasia Mutua vs Republic CA CR. APPEAL NO. 120 OF 2014 (unreported)wherein it was held that the duty of the court is to enforce the provisions of the constitution.

16. In a rejoinder, Miss Achiro for the 7threspondent submitted that the applicant had not shown that the 7th respondent had violated any of his rights. She added that the principles for granting conservatory orders were well stated in the case of Kenya Small Scale Farmers Forum vs Cabinet Secretary Ministry of Education Science and Technology HCCP NO. 399 of [2015] eKLR.

17. Miss Achiro argued that public interest, should be taken into account in granting conservatory orders and that the court ought to balance the interest of the petitioner and those of the 7th respondent when deciding this application. According to MissAchiro, the 7thRespondent only made a report of theft to the police and it did not have control over the police investigations so as to determine when the applicant would be arraigned in court. She added that the conservatory orders, if granted, would prejudice the criminal proceedings pending before the trial court.

18. It was the 7th respondent’s case that the applicant had not established a prima facie case or exceptional circumstances to warrant thegranting of the conservatory orders sought.

19. In a brief rejoinder, Mr. Oguttu for the applicant submitted that it is the complaint made by the 7th respondent that led to the arrest of the petitioner and therefore, the 7th respondent was a pertinent party to the case. He added that the issue of a prima facie case being established by the applicant did not arise and that all the court needed to note are the constitutional values that had been breached.

Analysis and determination

20. Upon considering the pleadings filed by the parties herein, the oral submission and the authorities that they cited, I am of the view that the main issue for determination is whether the petitioner has made out a proper case for the grant of conservatory orders sought. The applicant seeks a conservatory order in the nature of prohibition to prohibit the respondents from proceeding with the criminal charges against him vide Kisii CMCR No. 321 of 2017 and or prosecuting him on the basis of a complaint that led to his arrest and detention in police custody for a period in excess of 6 days which was a violation of Articles 27, 28 and 49 of the constitution, pending the hearing and determination of the petition. In a nutshell, the applicants case is that since he was detained in police custody for a period exceeding the statutory period of 24 hours, his prosecution following the said detention, should be put on hold pending the outcome of the petition.

21. Article 22 of the Constitution stipulates that every person has a right to institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been denied, violated, infringed or is threatened.

22. Article 23 of the Constitution grants the High Court jurisdiction in accordance with Article 165 of the Constitution, to hear and determine applications for redress of a denial, violation or infringement of or threat of a right or fundamental freedom in the Bill of Rights. The said Article 23 of the Constitution stipulates as follows:

“(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.

(3) In any proceedings brought under Article 22, a court may grant appropriate relief, including––

(a) a declaration of rights;

(b) an injunction;

(c) a conservatory order;

(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;

(e) an order for compensation; and

(f) an order of judicial review.”

23. The general principles guiding courts in determining applications for conservatory orders were set out in the case of Small Scale Farmers Forum vs Cabinet Secretary Ministry of Education Science and Technology (supra) as follows:

“[30] .... the principles which govern a court considering an application for interim or conservatory relief [are considered] to be the following:

The applicant ought to demonstrate a prima facie case with a likelihood of success and that he is likely to suffer prejudice as a result of the violation or threatened violation if the conservatory order is not granted: see Centre for Rights Education and Awareness & 7 Others vs The Attorney General HCCP No. 16 of 2011. It is not enough to show that the prima facie case is potentially arguable but rather that there is a likelihood of success: see Godfrey Mutahi Ngunyi vs The Director of Public Prosecution & 4 Others NBI HCCP No. 428 of 2015 and also Muslims for Human Rights and Others vs Attorney General & Others HCCP No. 7 of 2011.

The grant or denial of the conservatory relief ought to enhance Constitutional values and objects specific to the rights or freedoms in the Bill of Rights: see Satrose Ayuma & 11 Others vs Registered Trustees of Kenya Railways Staff Benefits scheme [2011] eKLR and also Peter Musimba vs The National Land Commission & 4 Others (No. 1) [2015] eKLR.

If the conservatory order is not granted, the Petition or its substratum will be rendered nugatory: see Martin Nyaga Wambora vs speaker of the County Assembly of Embu & 3 Others HCCP No. 7 of 2014.

The Public interest should favour a grant of the conservatory order: see the Supreme Court of Kenya’s decision in Gatarau Peer Munya vs Dickson Mwenda Githinji & 2 Others [2014] eKLR.

The circumstances dictate that the discretion of the court be exercised in favour of applicant after a consideration of all material facts and avoidance of immaterial matters: See Centre for Human Rights and Democracy & 2 Others vs Judges and Magistrates Vetting Board & 2 Others HCCP No. 11 of 2012 as well as Suleiman vs Amboseli Resort Ltd [2004] 2 KLR 589.

24. In the instant case, there are several parties to this case who interests this court needs to take into account and balance while exercising its discretion on whether or not to grant the prayers sought. On one hand, there is the petitioner who states that his constitutional rights were infringed due to the long detention in police custody, while on the other hand, there is the complainant, the 7th respondent herein, who claims that it lost huge sums of money that it alleges were stolen by the petitioner. At the centre of the dispute are the law enforcement agencies and the court, who are charged with various constitutional responsibilities to ensure that law and order is maintained. So the question which this court needs to answer is if failure by one of the players, as is the case in the instant application, should spell doom for the entire criminal prosecution that has already been initiated against the petitioner before the lower court.

25. Courts have on numerous occasions been called upon to deliberate on whether or not to grant orders prohibiting criminal prosecutions out of which several principles have been developed.

26. Of greatest emphasis is that courts will not usurp the powers of other state agencies and bodies in the exercise of their constitutional mandate bestowed to them by the constitution as long as they comply with the constitution and national legislation. See Diana Kethi Kilonzo vs IEBC & 2 Others NBI HCCP No. 359 of 2013.

27. Article 157 of the Constitution, enjoins the 5th Respondent herein, the Director of Public Prosecution (DPP) to order investigations into any alleged Criminal conduct or activities. The DPP is also granted powers to institute, continue, take over and or discontinue any criminal proceedings. The courts must therefore exercise restraint and avoid interfering with the DPP’s constitutional powers. In the exercise of its supervisory jurisdiction under Article 165 of the Constitution, the courts must ensure that they do not interfere with the powers of other independent offices and in this regard, the court must exercise its powers only in exceptional circumstances since the constitutional functions performed by the state organs are geared towards serving the wider public interest as opposed to the perceived private right of one individual as is the case in the instant petition.

28. In the case of Gitarau Peter Munya vs Dickson Mwenda Githinji & 2 Others [2014] eKLR, the Supreme Court explained the place of conservatory orders in legal proceedings as follows:

“Conservatory Orders” bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions linked to such private-party issues on the “prospects of irreparable harm occurring during the pendency of a case; or “high probability of success” in the applicants case for orders of stay. Conservatory orders consequently, should be granted on the inherent merit of the case bearing in mind the public interest, the Constitutional values and the proportionate magnitudes, and priority levels attributable to the relevant causes.”

29. Guided by the principles espoused in the above case and taking into account the fact that the public state agencies such as the 1st to 6th respondents herein operate to safeguard public interest, I do not find that any exceptional circumstances have been brought to the fore in this application to warrant the granting of the conservatory orders sought.

30. The applicant’s main reason for seeking conservatory orders is that his rights, during arrest, were infringed because he was not arraigned in court within the stipulated 24 hour period. To my mind, the said breach of constitutionalprovision if proved can be redressed by way of damages which the applicant has already sought as one of the prayers in the petition. In other words, if the respondents are found to have acted unlawfully or contrary to constitutional principles and values and in violation of the petitioners rights while enforcing the law, then there is available remedy under Article 23 of the Constitution including declaration of rights and or for compensation. The petitioner has already prayed for the payment of general and exemplary damages on account of breach, violation and/or infringement of his constitutional and fundamental rights under Articles 27, 28, 29, 32, 49 and 50 of the Constitution. The answer to the question as to whether these rights were infringed can only be determined at the hearing of the petition.

31. As matters stand now, I find that it will be in the public interest that the criminal proceedings pending before the trial court proceeds without any hindrance by way of a conservatory order as the colossal amount of money alleged to have been stolen by the applicant is money held by the 7th respondent on behalf of their depositors who are members of the public and other institutions. The court takes judicial notice that such loss of public funds or funds belonging to institutions, it unchecked, can lead to the collapse of such institutions as has been experienced in the recent past when banks collapse or are forced to close down at the expense of members of the public who are their depositors. Needless tosay, therefore, loss or theft of money from a banking institution is a matter of interest to the public which far outweighs the interest of the applicant who is an individual.

32. The applicant has not shown that the criminal proceedings are an abuse of the process or are simply contrary to public policy or that the prosecution is not intended to achieve the objectives of the criminal justice system. See Githunguri vs Republic [1986] KLR 1.

33. In exercising its discretionary jurisdiction, the court must balance the wider public interest of ensuring that persons accused of crimes are tried through a justice system that is not abused or placed into disrepute by putting accused persons through an unjust or unfair process. See Godfrey Mutahi Ngunyi vs Director of Public Prosecution & 4 others [2015] eKLR .

34. In Manilal Jamnadas Ramji Gohi vs Director of Public Prosecution NBI Criminal Appeal (APPL) No. 51 of 2013, it was held that an order staying criminal proceedings should only be granted in most exceptional circumstances.

35. In the instant case, I am not satisfied, from the material placed before me, that the applicant has demonstrated that there are exceptional circumstances that would warrant the granting of the conservatory orders sought. The orders sought would unnecessarily stay or prevent the respondents from performing their constitutional functions and mandate.

36. The instant application is therefore dismissed with orders that costs shall abide the outcome to the petition.

Dated, signed and delivered in open court this 19th day of July, 2017

HON. W. A. OKWANY

JUDGE

In the presence of:

- N/A for the Petitioner

- Mr. Otieno for 2nd, 3rd, 4th, 5th& 6th for the Respondents

- Omwoyo court clerk