[2023] KEHC 25301 (KLR)

Langat v Shikondi & 4 others (Constitutional Petition 3 of 2021) [2023] KEHC 25301 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25301 (KLR)

Republic of Kenya

In the High Court at Bomet

Constitutional Petition 3 of 2021

RL Korir, J

November 10, 2023

IN THE MATTER OF: ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 24, 28, 48, 50, 51, 165 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 25, 27, 28, 29, 47, 49, 50(2), 157(10) (11) AND 244 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE NATIONAL POLICE SERVICE ACT CAP 48 LAWS OF KENYA AND IN THE MATTER OF: THE CRIMINAL PROCEDURE CODE CAP 75 LAWS OF KENYA AND IN THE MATTER OF: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 1949 AND IN THE MATTER OF INTERNATIONAL COVENENT ON CIVIL AND POLITICAL RIGHTS AND IN THE MATTER OF: UNLAWFUL ARREST, HARASSMENT, INCACERATION AND PROSECUTION OF THE PETITIONER HEREIN ON 5TH MAY 2020

Between

David Langat

Petitioner

and

Alexander Lusega Shikondi

1st Respondent

Geoffrey O. Omonding

2nd Respondent

Criminal Investigation Officer, Konoin Sub County

3rd Respondent

Director of Public Prosecutions

4th Respondent

Attorney General

5th Respondent

Judgment

1. The Petitioner (David Langat) was the Senior Chief Mogogosiek Konoin Location. The 1st Respondent (Alexander Lusega Shikondi) was formerly the Konoin Sub County Officer Commanding Police Division and was now the Muranga South Sub County Police Commander. The 2nd Respondent (Geoffrey O. Omonding) was the former Bomet County Commissioner. The 3rd, 4th and 5th Respondents were the Director of Criminal investigation Office, Konoin, the Director of Public Prosecution and the Attorney General respectively.

2. The Petitioner filed a Notice of Motion Application and Petition both dated 18th November 2021. I will address the Notice of Motion Application before determining the Petition.

3. The Notice of Motion Application sought the following orders: -I.That the Application be certified urgent and service of the same be dispensed in the first instance and heard on a priority basis.II.That the Honourable Court be pleased to give directions that the Petition raises weighty issues about interpretation of the Constitution, the bill of rights and enforcement of the Constitution.III.That the Honourable Court be pleased to direct that the Petition be heard by one judge and the same to proceed for hearing and final determination.

4. The crux of the Application was that the Petitioner wanted the court to give directions as to the hearing of the Petition. On 14th June 2022, I directed that the Petition proceed by way of written submissions. I also granted leave to the Respondents to file their responses to the Petition and corresponding leave to the Petitioner to file a further affidavit, if need be. It is my finding that my directions regarding the hearing of the Petition dispensed off the Notice of Motion Application dated 18th November 2021.

The Petition. 5. David Langat (Petitioner) filed a Petition dated 18th November 2021 where he sought the following Orders:-a.A declaration that the Petitioner’s fundamental rights and freedoms as enshrined under Articles 25, 27, 28, 29, 47, 48, 49, 50 (2) (a) of the Constitution of Kenya, 2010 have been contravened and infringed upon by the Respondents.b.Declaration that the Petitioner herein is entitled to 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) and (2) thereof.c.Declaration that the arrest and detention of the Petitioner herein in police custody for a period of 7 days with effect from 5th May 2021 to 12th May 2021 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. d.A Declaration that the arrest, detention in police custody and arraignment of the Petitioner had no legal basis.e.A Declaration that the 1st and 2nd Respondents contravened Articles 10, 27, 28, 47, 48, 49 and 73 of the Constitution of Kenya, 2010, hence unfit to hold any public office in Kenya.f.A Declaration that the 1st and 3rd Respondents violated Article 238 (2) (9b) of the Constitution in the manner in which they arrested, detained and charged the Petitioner and a declaration that the 4th and 5th Respondents have abdicated their constitutional roles hence escapists.g.General damages for wrongful arrest, unlawful detention in police custody, torture, degrading treatment, malicious blistering prosecution, unfair administrative action, defamation and breach, violation and/or infringement of the fundamental and constitutional rights of the Petitioner.h.Special damages of Kshs 300,000/=i.Costs of the suitj.Any other relief this Honourable Court may deem fit to grant.

6. The Petition was brought under Articles 2, 3, 10, 19, 20, 21, 25, 27, 39, 47, 49, 50, 156, 147, 238(2), 244 and 259 of the Constitution of Kenya. It was also based on Article 9(1) and (5) of the International Covenant on Civil and Political Rights and Articles 5 and 8(3) (a) of the Universal Declaration of Human Rights 1949.

The Petitioner’s Case. 7. The Petitioner stated that he was unlawfully arrested by officers under the command of the 1st Respondent on 5th May 2020 at around 7. 50 p.m. while in the company of B.C, a minor aged 15 years. That upon his arrest, he was held for a period of 7 days without being informed of the reasons for his arrest. The Petitioner further stated that while in custody, he was subjected to torture, inhumane treatment and that he was denied access to his family members, a doctor and a lawyer.

8. It was the Petitioner’s case that he only got to know of the charges when he was arraigned before court on 12th May 2021. That he was charged with the three counts as follows: -a.Attempted defilement contrary to Section 9 (1) of the Sexual Offences Act No. 3 of 2006b.Committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. c.Abuse of position of trust contrary to Section 24 (5) of the Sexual Offences Act No. 3 of 2006. d.Breach of curfew order contrary to Section 3 of the Public Order (State Curfew) Order, 2020 as read together with the Public Order Act Cap 56 Laws of Kenya.

9. On the first offence of attempted defilement, the particulars of the offence was that on 5th May 2020 at around 1950 hours at Mogogosiek Trading Centre in Konoin sub-county within Bomet County, the Petitioner attempted to defile B.C a child aged 15 years in contravention of the Act. The particulars of the alternative charge of committing an indecent act with a child were that on 5th May 2020 at 1950 hours at Mogogosiek Trading Centre in Konoin sub-county within Bomet County, the Appellant intentionally touched the private parts namely breasts and vagina of B.C by caressing her.

10. The particulars of the second offence of abuse of position of trust were that on 5th May 2020 at 1950 hours at Mogogosiek Trading Centre in Konoin sub-county within Bomet County, the Appellant took advantage of his position as senior chief Mogogosiek location against B.C by taking her in an isolated garage inside his car registration number KAY 514.

11. The particulars of the third offence of breach of curfew orders were that on 5th May 2020 at 1950 hours at Mogogosiek Trading Centre in Konoin sub-county within Bomet County, while not on duty, the Appellant was found seated in motor vehicle registration number KAY 514H at an isolated garage without proper reason.

12. The Petitioner stated that he was acquitted of all the charges under Section 210 of the Criminal Procedure Code as the prosecution’s case was weak. That out of malice, the 1st Respondent caused him to be arrested and charged because he failed to give him money. The Petitioner further stated that the 1st Respondent protected the trade of illicit brews within Konoin Location and that he had earlier threatened to have him punished before his retirement age. That the 3rd and 4th Respondents were used as puppets by the 1st Respondent to settle personal scores.

13. It was the Petitioner’s case that the 1st Respondent’s malice and bad faith was manifested when he held the minor in custody for 7 days coercing and threatening her to implicate the Petitioner and when he failed, he instigated criminal proceedings against the Petitioner.

14. The Petitioner stated that the 1st and 2nd Respondents issued press statements to Citizen TV on 6th and 7th May 2020 calling him “chifu mbakaji” and declaring their intent to prosecute, punish and dismiss him from his employment. That the videos of the press statements were still on YouTube and they were continually defaming him amongst the right thinking members of the society.

15. It was the Petitioner’s case that he was thereafter issued with several interdiction and gross misconduct letters dated 8/7/2020, 21/7/2020 and 30/7/2020 that prohibited him from performing his duties.

16. The Petitioner stated that without reasonable cause and on choreographed suspicion, the 1st Respondent caused him to be arrested and charged with attempting to defile the minor, B.C. That without an iota of evidence and on shambolic circumstantial evidence, the 3rd and 4th Respondents charged and prosecuted him even though he did not make any move towards executing the offence of defiling B.C.

17. It was the Petitioner’s case that the 1st, 2nd and 3rd Respondents maliciously and out of bad faith caused him to be arrested and prosecuted on the charge of breach of curfew order when they knew that he was exempted from the restrictions imposed under section 5 (2) of the Public Order (State Curfew) Order, 2020 as he was a national government administrative officer. That there was no indication that he was off duty on the material night. It was the Petitioner’s further case that the 3rd and 4th Respondents failed to include the Legal Notice Number on the charge of Breach of Curfew Order thereby limiting his right to defend himself against the charge.

18. The Petitioner stated that the personnel manning the offices of the 3rd and 4th Respondents did not apply their minds to the evidence on record. That the 1st, 2nd and 3rd Respondents lacked impartiality and consistency when they preferred charges against him and that they acted capriciously and brutally. The Petitioner further stated that the 4th Respondent lacked functional and institutional independence contrary to Article 157 of the Constitution.

19. It was the Petitioner’s case that the Respondents should take full responsibility for their actions which were clearly abuse of office. That the accusations against him were false and the subsequent prosecution was malicious and oppressive. According to the Petitioner, no meaningful investigations were carried out and his arrest and arraignment in court was driven by malice. He averred that the evidence brought against him in the trial court negated the charges brought against him.

The Response. 20. The 1st, 2nd, 3rd and 5th Respondents (hereinafter referred to as the Respondents) filed their Grounds of Opposition dated 4th October 2022 where they stated that the prayers sought were against Section 4 (3) of the Government Proceedings Act which envisaged that public officers could not be sued in their personal and individual capacities in tortious claims committed in the course of their duties. That the 3rd Respondent was well within the law to commence criminal investigations against the Petitioner in Sotik Principal Magistrate’s Court Sexual Offence Number 22/2020.

21. It was the Respondents’ case that the Petitioner had not exhausted the remedies available to him pertaining the 1st, 2nd and 3rd Respondents whose conduct was to be subjected to the Independent Police Oversight Authority which had the mandate to conduct impartial investigations in the interest of the public.

22. It was their case that the 4th Respondent was an independent constitutional institution which did not require consent or authority from any person to commence criminal proceedings and could not be directed. That the 4th Respondent was well within the law to commence criminal proceedings against the Petitioner pursuant to Article 157 (9) and (10) of the Constitution and Sections 5 (1) (a) (b) (i), (ii) and 6 (b) of the Office of the Director of Public Prosecutions Act 2013.

23. The Respondents stated that there was no evidence of malice. That the issue of malice was a question of fact which must be established or proved before the trial court. The Respondents further stated that the issue of malice should have formed part of the Petitioner’s defence before the trial court.

The 4thRespondent’s Reply 24. The 4th Respondent filed a Replying Affidavit dated 31st October 2022 sworn by CIP Tom Joseph Sibuna who was a police officer attached to DCI Konoin sub county. CIP Tom Joseph Sibuna stated that on 5th May 2020, the 1st Respondent received information that there was a car parked in a garage within Mogogosiek Trading Centre with its engine running and lights on. That the 1st Respondent instructed Konoin Police Station CIP Joseph Njunge to mobilise a team of police officers and proceed to the scene to investigate.

25. CIP Tom Joseph Sibuna (Investigating Officer) stated that when the police officers arrived at the scene which was a dark and deserted garage approximately 50 meters from the road, they ordered the occupants out of the vehicle. That the Petitioner came out and on close inspection of the vehicle, they found a child called B.C who was about 15 years old seated on the co-driver seat which was completely reclined. He further stated that B.C was fully dressed and covered in a Masaai leso. That this was during the Covid 19 pandemic when all non-essential service providers were supposed to be indoors from 6. 00p.m.

26. The Investigating Officer stated that the Petitioner who was a senior chief was not uniformed as was the norm and he could not give a satisfactory explanation as to why he was in the company of a minor at night during curfew hours. That they were both arrested and taken to Konoin Police Station and placed in custody pending investigations. He further stated that the 24 hours allowed by law to hold someone in custody expired on 6th May 2020. That he thereafter presented the Petitioner in court on 7th May 2020 vide a Miscellaneous Application Number 16 of 2020 where he sought to hold the Petitioner for 7 days to enable him complete his investigation.

27. CIP Tom Joseph Sibuna opined that he was granted the 7 days to continue with his investigations. That the allegation that he was held unlawfully for 7 days was sanctioned by the court. He further stated that the Petitioner was not tortured but was treated with dignity and was accorded with all the amenities entitled to every other suspect in custody.

28. The Investigating Officer stated that the Petitioner never raised any complaints with him regarding the inhumane treatment and he also did not raise them when he appeared in court on 12th May 2020. That the allegations were mere fabrications and an afterthought. He further stated that when he was recording the statements, the minor and her mother were very protective of the Petitioner though the mother was suspicious of her daughter’s habit of sleeping in the Petitioner’s house.

29. CIP Tom Joseph Sibuna stated that he was convinced having evaluated the evidence that the Petitioner was out to sexually molest the minor. That he recommended the same to the 4th Respondent who agreed that the Petitioner should be charged. He further stated that his covering report to the 4th Respondent was not actuated by bad faith, ill will, malice or caprice.

30. The Investigating Officer stated that the 1st and 2nd Respondents only arrested the Petitioner and that they were not involved in the investigations. That they neither influenced the decision to charge nor did they direct or interfere with his investigations. He further stated that the Petitioner’s rights under the Constitution of Kenya were not infringed upon.

31. On 14th June 2022, I directed that the Petition proceed by way of written submissions.

The Petitioner’s Submissions. 32. The Petitioner filed his submissions dated 25th September 2022 on 26th September 2022. Learned counsel for the Petitioner, Mr. Kipkoech submitted that the Petitioner’s rights under Article 49 of the Constitution and Article 9 (2) of the International Covenant on Civil and Political Rights were violated when he was arrested and held in Konoin Police Station for a period of 7 days without being informed of the reason for his arrest and without any access to persons from the outside world. That the Constitution placed an obligation on the arresting officer to inform an accused person promptly the reasons for his arrest in a language he/she understood and that the accused person ought to enjoy a fair trial immediately. He relied on the case of Anthony Murimi Mwangi vs Attorney General & 4 others (2020) eKLR.

33. Further, the Petitioner submitted that he was not presented to court within the required 24 hours. That he was arrested on Monday 5th May 2020 at 7. 50 p.m. and was brought to court on 12th May 2020. He relied on Salim Kofia Chivui vs Resident Magistrate Butali Law Courts and Another (2012) eKLR. The Petitioner submitted that the Respondents had failed to demonstrate that holding him beyond the 24 hours was on the authority of the court.

34. It was the Petitioner’s submission that his rights under Article 25 of the Constitution and Article 5 of the Universal Declaration of Human Rights 1949 were violated when he was subjected to untold torture, cruel, inhuman and degrading treatment while in custody. That this was done by locking him in an overcrowded cell where he was beaten and forced to kneel on the concrete floor, was deprived of sleep, rest, food, water, use of the toilet facilities and was interrogated and coerced into a confession. He relied on the case of Musa Mbwagwa Mwanasi & 9 others vs Chief of Kenya Defence Forces & another (2021) eKLR.

35. The Petitioner submitted that his failure to tender a medical report exhibiting the effects of torture and ill treatment did not defeat his claims because an Accused person has no opportunity to take photographs of the torture or to get medical reports to show the injuries one suffers. The Petitioner further submitted that the 1st and 2nd Respondents press statements caused him psychological torture and defamed him amongst right thinking members of the society. That he also suffered financial and psychological distress from the gross misconduct and interdiction letters.

36. It was the Petitioner’s submission that the 1st Respondent testified as PW12 in Sotik Magistrate’s Court Sexual Offence Number 22 of 2020 where the Petitioner was the Accused person. That after scandalising him in the media by saying that the Petitioner was caught in the act, he recoiled in court. It was his further submission that that the 1st Respondent’s actions indicated a flagrant use of police power and freedom of the press.

37. The Petitioner submitted that the 1st and 2nd Respondents were sued in their personal capacity as they had conducted themselves so flagrantly. He relied on Kimunai Ole Kimeiwa & 5 others vs Joseph Motari Mosigisi (The then District Commissioner, Rongai District) & 3 others (2019) eKLR. The Petitioner further submitted that during his tenure as the Senior Chief Mogogosiek, Konoin sub location, he was against the trade of illicit brew which the 1st Respondent protected and this did not sit well with him. That the 1st Respondent had on several occasions verbally threatened to use his position as the Officer Commanding Police Division to punish him before his retirement age.

38. It was the Petitioner’s submission that the 1st and 2nd Respondents actions of issuing press statements labelling him “chifu mbakaji” and their promises to dismiss him from his employment infringed upon his rights enshrined in Articles 10 (2) and 73 of the Constitution. That the aforementioned Articles placed a higher responsibility on a public officer to be fair and modest and not to use their position for improper motives or discrimination. It was the Petitioner’s further submission that he was portrayed as an officer who had no integrity or dignity in the performance of his duties. He urged that the 1st and 2nd Respondents be held personally liable for the violation of national values and principles of governance as set out in Articles 10 and 73 of the Constitution of Kenya, 2010.

39. The Petitioner submitted that he was unlawfully arrested and prosecuted because the Respondents lacked reasonable and probable cause in arresting and charging him with the offence of Breach of the Curfew Order. That the Public Order (State Curfew) Order 2020 exempted him from the imposed restrictions and that it was not the first time that the Petitioner and officers under the command of the 1st Respondent had worked together in implementation of the said order. The Petitioner further submitted that he was unable to defend himself against the aforementioned charge as the Respondents did not indicate the Legal Notice Number.

40. It was the Petitioner’s submission that it was not proper that a police officer could arrest and charge innocent Kenyans and take them through an unnecessary criminal trial. He relied on Thomas Mboya Oluoch & Another vs Lucy Muthoni Stephen & Another (2005) eKLR.

41. The Petitioner submitted that the Respondents maliciously used the criminal justice system against him. That the trial court record showed no connection between the alleged crimes and the Petitioner and that there was no evidence that would warrant his prosecution. He relied on Kimunai Ole Kimeiwa & 5 others vs Joseph Motari Mosigisi (supra) and Anthony Murimi Waigwe vs Attorney General & 4 others (supra). He further relied on the case of Murunga vs Attorney General (1979) KLR 138 which set out the elements that needed to be proved in a claim for malicious prosecution.

42. It was the Petitioner’s submission that the 4th Respondent was required by Article 157 (1) of the Constitution to have regard to public interest, the interest of the administration of justice and the need to prevent the abuse of the legal process. That only those with prosecutable cases ought to be arraigned before court. It was the Petitioner’s further submission that the 4th and 5th Respondents abdicated their constitutional role and aided his malicious prosecution.

43. On damages, the Petitioner submitted that he deserved general damages for wrongful arrest, unlawful detention in police custody, torture, degrading treatment, malicious prosecution, unfair administrative action, defamation and violation of his fundamental and constitutional rights. He sought a global sum of Kshs 2,000,000/= and he relied on John Atelu Omilia & another vs Attorney General & 4 others (2017) eKLR.

44. It was the Petitioner’s submission that a party whose constitutional rights are found to have been violated is entitled to damages and that the court had discretion on the quantum. He relied on Dr. Willy Kabureka vs Attorney General Kampala, HCCS No. 160 of 1993 and Kimunai Ole Kimeiwa & 5 others vs Joseph Motari Mosigisi (supra).

45. The Petitioner submitted that he sought punitive damages of Kshs 1,500,000/= as a way of deterring the 1st and 2nd Respondents from violating the rights of other citizens. The Petitioner further submitted that he was interdicted thereby causing him financial strain. He relied on Geoffrey Githiri Kamau vs Attorney General (2015) eKLR.

46. It was the Petitioner’s further submission that he sought special damages to the tune of Kshs 300,000/= which arose out of legal fees he expended on the case.

The 1st, 2nd, 3rd and 5th Respondent’s Submissions. 47. The 5th Respondent through learned State Counsel Mr. Momanyi filed submissions for the 1st, 2nd, 3rd and 4th Respondents. It was their submissions that the 1st and 2nd Respondents were sued in their individual capacities which offended the provisions of Sections 4 and 12 of the Government Proceedings Act and that made the Petition incompetent. They relied on the case of John Muthoka Mutua & others vs Joyce W. Kombe & 3 others (2017) eKLR.

48. The Respondents submitted that the Petitioner was arrested in the company of a minor and it was common knowledge that all arrested offenders ought to be charged before courts of law and that if the offenders are public servants then an interdiction follows as a matter of course. The Respondents further submitted that the 2nd Respondent’s presser only restated government policy and issues that were within the public domain. That the same was done in consonance with the law.

49. It was the Respondents submission that the Petitioner was arrested by the 1st Respondent, PC Ngeno, PC Gathoni, PC Mwendwa and PC Mutisya and not the 2nd Respondent. That the allegations that the 2nd Respondent caused the prosecution of the Petitioner were unfounded. It was the Respondents further submission that the 4th Respondent was mandated under Article 157 of the Constitution to institute criminal proceedings against any person, to take over and continue with any criminal prosecution and to discontinue any criminal proceedings before Judgment is rendered. That there was no evidence to show that the 4th Respondent was a party to the investigations of the Petitioner’s alleged criminal conduct. They relied on Okiyah Okoiti Omtata vs the Director of Public Prosecutions; Inspector General of National Police Service & another (Interested Parties) International Commission of Jurists (Kenya) Nairobi Petition No. E266 of 2020 (2022) eKLR and Sylvanus Okiay Ongoro vs Director of Criminal Investigations & 4 others (2020) eKLR.

50. The Respondents submitted that even though the Petitioner complained of constitutional violations, the same could be dichotomized as tortious acts of false imprisonment and malicious prosecution whose remedies lie in private law which ought to be explored first. That police discipline and oversight is the domain of the Independent Police Oversight Authority. The Respondents further submitted that the Petitioner ought to have filed a complaint with the Independent Police Oversight Authority so as to establish its factual basis. They relied on Sections 6, 7, 24 and 25 of the Independent Policing Oversight Authority Act No. 35 of 2011 and Martin Wanderi & 106 others vs Engineers Registration Board & 10 others (2018) eKLR.

51. It was the Respondents submission that IPOA was clothed with the power to hear at the inception, any claim against a police officer. That IPOA calls for evidence, can visit the scene and it is obligated to assist any complainant with information for purposes of filing a claim for compensation in a civil court. It was the Respondents further submission that the Petitioner proceeded to this court without the input of IPOA’s investigations and that this court could not know whether the Petitioner was indeed tortured or denied access to his family, doctor or lawyer while in custody. They relied on the cases of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others, Civil Appeal No. 290 of 2012 (2013) eKLR, Alphonse Mwangemi Munga & 10 others vs African Safari Club (2008) eKLR and Speaker of the National Assembly vs Karume Civil Application No. NAI 92 of 1992.

52. The Respondents submitted that the normal process would have been for the Petitioner to file a complaint to IPOA, then if necessary pursue a claim for compensation in a civil court. They relied on Uhuru Muigai Kenyatta vs Nairobi Star Publications Limited (2013) eKLR and James Gacheru Kariuki & 69 others vs William Kabogo Gitau & 104 others (2019) eKLR.

53. It was the Respondents submission that the Petitioner’s claim for malicious prosecution was done in the wrong forum and was therefore incompetent. That the Petitioner ought to have filed his suit in a civil court. It was the Respondents further submission that filing of a Petition left them with no opportunity to respond to the particulars of malice pleaded and that it offended the holding in Mumo Matemu (supra) which stated that pleadings ought to be precise enough to define the nature and scope of the claimant’s case.

54. The Respondents submitted that where there is a remedy for any infraction provided by a statute, then that remedy should be resorted to first before resorting to the Constitution. They relied on Dickson Mukwelukeine vs Attorney General & 4 others Nairobi High Court Petition No. 390 of 2012, John Fitzgerald Kennedy Omanga vs The Postmaster General Postal Corporation of Kenya & 2 others Nairobi HCMA No. 997 of 2003 and G M vs Bank of Africa Kenya Limited (2013) eKLR.

55. It was the Respondents submission that an acquittal under Section 210 of the Criminal Procedure Code did not mean that the prosecution did not have probable cause or that they were malicious. They relied on Glinsk vs Mclver (1962) AC 726.

56. It was the Respondents submission that the National Police Service draws its investigative powers from Article 245 of the Constitution and Section 35 of the National police Service Act 2013. That despite having different mandates, they executed their duties within the structures of the law in arresting and prosecuting the Petitioner and that there was no evidence to indicate that they undertook their duties with malice. They relied on Republic vs Commissioner of Police and Another ex parte Michael Monari & another (2012) eKLR.

57. The Respondents submitted that the Petitioner was arrested during the Covid 19 period where the government had issued Legal Notice No.36 of March 2020 containing containment measures. That the National Council on Administration of Justice made resolution on 15th March 2020 key among them was that prisoners and remandees were not to be presented in court. The Respondents further submitted that the incarceration of 7 days was justified because the courts were not functioning at full capacity. They further asked the court to take judicial notice of the then Covid 19 containment measures. They relied on Kenya Power & Lighting Company Ltd vs Rose Anyango & another (2020) eKLR, Monica Wangu Wamwere & 5 others vs The Attorney General Petition No. 26 of 2019 (Consolidated with Petition No’s 34 & 35 of 2019) and Republic vs Simon Wambugu Kimani & 20 others (2015) eKLR.

58. It was the Respondents submission that the sole purpose of pursuing a claim under public law particularly under the Constitution was the validation of rights and not monetary compensation. That the guiding principles in award of damages in constitutional litigation was enunciated in Gitobu Imanyara & 2 others vs Attorney General (2016) eKLR. They also relied on John vs MG Ltd (1996) I ALL E.R 35.

59. The Respondents submitted that the claim was not properly before this court and the claim for Kshs 1,500,000/= had no justification. That while the Petitioner sought aggravated damages, he had not demonstrated malice on the part of the Respondents. The Respondents further submitted that the Petitioner could not seek costs of the suit and special damages which were receipted legal fees. That this particular special damage was not awardable as the same will be awardable on taxation if he is awarded costs.

The 4 th Respondent’s Submissions. 60. The 4th Respondent through their submissions dated 31st October 2022 submitted that Articles 157 and 243 of the Constitution established the National Police Service and the Office of the Director of Public Prosecutions respectively. That under the prosecution guidelines, the 4th Respondent is guided by the prospects of conviction and public interest. It further submits that the 3rd and 4th Respondents exercised their powers with due regard to the Constitution and all applicable law.

61. It was the 4th Respondent’s submission that any reasonable person applying the law to the available evidence would have arrived at the same decision to charge and they relied on Mohamed Edin Adan vs the DPP and I.G (2022) eKLR. That the incontrovertible evidence was that the Petitioner was found in a dark place with a minor and were it not for the swift action of the police, then the Petitioner would have accomplished his mission of defiling the subject. The 4th Respondent invited the court to presume that the Petitioner in taking the minor to a hideout was out to commit the offence he was accused of. It relied on Section 119 of the Evidence Act.

62. The 4th Respondent submitted that there was no evidence that the Petitioner wanted to take the minor home and it was baffling why he drove her to a very secluded place instead of taking her home. The 4th Respondent further submitted that the Petitioner’s contention that he was enforcing curfew regulations was fallacious and inconceivable. That he was not uniformed or accompanied by other police officers and it wondered how the Petitioner was enforcing curfew orders in a deserted place.

63. It was the 4th Respondent’s submission that the matter attracted serious public interest bearing in mind the respective age of the Petitioner and that of the minor. That it would have been in contempt of the Constitution and public interest not to investigate and prosecute.

64. The 4th Respondent submitted that reasonable and proper cause existed at the time the Respondents commenced the trial. That the proceedings were properly instituted even if it led to the Petitioner’s acquittal. The 4th Respondent further submitted that it had reason to believe that the Petitioner had committed all or some of the offences that he was charged with. It relied on the case of Lawrence Onyango vs The Attorney General & another (2022) eKLR.

65. It was the 4th Respondent’s submission that an acquittal is not a sufficient basis for a malicious prosecution suit. That spite or ill will has to be proved which the Petitioner has failed to. It relied on Nzoia Sugar Company Ltd vs Fungutuni (1988) eKLR, Ibrahim Wesonga Hersee vs DPP & others (2022) eKLR, Ruo vs DPP & others (2022) eKLR and Margaret Ndege & others vs Moses Oduor (2021) eKLR.

66. The 4th Respondent submitted that the Petitioner was using this Petition as a short cut to avoid proving his allegations. That his contentions are matters of fact which can only be proved in a civil court where the veracity of his lamentations could be tested. That the Petitioner could not expect to make sweeping and unfounded claims without strict proof and expect to succeed. It relied on Dickson Chebuye Ambeya vs NPS & others (2020) eKLR.

67. It was the 4th Respondent’s submission that this was a simple claim for unlawful arrest, false imprisonment and malicious prosecution all of which are torts. That the usual way of prosecuting such torts would be by a civil suit. It was the 4th Respondent’s further submission that there was no proof that the prosecution was malicious or was brought without reasonable cause. That the Petitioner was not entitled to the reliefs sought.

68. I have gone through and considered the Petition dated 18th November 2021, the 1st, 2nd, 3rd and 5th Respondents’ Grounds of Opposition dated 4th October 2022, the 4th Respondent’s Replying Affidavit dated 31st October 2022, the Petitioner’s Written Submissions dated 23rd September 2022, the 1st, 2nd, 3rd and 5th’s Written Submissions and the 4th Respondent’s Written Submissions dated 31st October 2022. I sieve four issues for my determination as follows: -i.Whether the Petition offended the doctrine of exhaustion.ii.Whether the Petitioner offended the provisions of the Government Proceedings Act by suing the 1st, 2nd and 3rd Respondentsiii.Whether there was a claim of malicious prosecution against the 4th Respondent.iv.Whether the Petitioner was entitled to the reliefs sought.

i.Whether The Petition Offended The Doctrine Of Exhaustion. 69. It was the Respondents’ case that the Petition offended the doctrine of exhaustion as the Petitioner had not exhausted the remedies especially regarding the 1st, 2nd and 3rd Respondents. That the Petitioner ought to have raised the perceived poor conduct of the 1st, 2nd and 3rd Respondents with the Independent Police Oversight Authority.

70. The Respondents submitted that the Independent Police Oversight Authority was clothed with the power to hear a complaint against a police officer. That the Oversight Authority had power to call for evidence and assist a complainant with information that would assist them in filing compensation claims in a civil court. The Respondents further submitted that by filing the instant Petition, parties were denied a chance to test the veracity of the Petitioner’s claims against the 1st, 2nd and 3rd Respondents.

71. The Doctrine of Exhaustion is defined in Black’s Law Dictionary 10th Edition as follows: -The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.

72. In the case of Joseph C. Kiptoo & Another vs Kericho Water And Sewerage Company (2016) eKLR, Mumbi J. (as she then was) held: -“It has been stated time and again that where an Act of Parliament provides for a mechanism for resolution of disputes, that mechanism must be strictly followed.”

73. Similarly, in the case of The Speaker of the National Assembly vs Karume (2008) 1KLR (E.P) 425, the Court of Appeal held that:-“In our view there is considerable merit that where there is a clear procedure for the redress of any particular grievance prescribed in the Constitution or an Act of Parliament, the procedure should be strictly followed.”

74. The Attorney General was sued as the 4th Respondent and he entered appearance on behalf of the 1st, 2nd and 3rd Respondent on 11th October 2022. In regards to the 1st and 3rd Respondents who were police officers, the Principal State Counsel, Moimbo Momanyi submitted that the Petitioner had offended the doctrine of exhaustion. That police discipline and oversight of their acts of omission and commission was the responsibility of the Independent Police Oversight Authority.

75. Section 6 of the Independent Policing Oversight Authority No. 35 of 2011 provides the functions of the Independent Policing Oversight Authority (hereinafter referred to as IPOA) as:-(a)investigate any complaints related to disciplinary or criminal offences committed by any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities, including recommendations for prosecution, compensation, internal disciplinary action or any other appropriate relief, and shall make public the response received to these recommendations;(b)receive and investigate complaints by members of the Service…….(f)co-operate with other institutions on issues of Police oversight, including other State organs in relation to services offered by them……

76. IPOA has powers to investigate claims against police officers either on its own motion or on receipt of complaints against police officers by the members of the public. Section 7 (1) (a) of the IPOA Act provides that: -The Authority shall have all the powers necessary for the execution of its functions under this Act, and without prejudice to the generality of the foregoing, the Authority shall have the power—(a)to investigate the Service on its own motion or on receipt of complaints from members of the public, and for that purpose, to gather any information it considers necessary by such lawful means as it may deem appropriate, including by—(i)requisition of reports, records, documents or any information from any source, including from the Police, irrespective of whether that source is located within or outside Kenya and irrespective of whether any other person or body, other than a court of law, has already instituted or completed a similar investigation or similar proceedings;(ii)entering upon any establishment or premises, including Police premises, on the strength of a warrant, and subject to any relevant law, where the premises are a private home or dwelling;(iii)seizing and removing any object or thing from any premises, including Police premises, which may be related to the matter under investigation, and in respect of which a receipt shall be given to the owner or person apparently in control of the object or thing;(iv)interviewing and taking statements under oath or affirmation from any person, group or members of organizations or institutions and, at its discretion, to conduct such interviews in private;(v)summoning any person to meet with its staff, or to attend any of its sessions or hearings, and to compel the attendance of any person who fails to respond to its summons;(vi)administering oaths or affirmations before taking evidence or statements where necessary;(vii)summoning any serving or retired Police officer to appear before it and to produce any document, thing or information that may be considered relevant to the function of the Authority;(viii)ensuring that where necessary, the identities of complainants or witnesses are not disclosed to their detriment;(ix)recommending to the Director of Public Prosecutions the prosecution of any person for any offence;(x)investigating any death or serious injury occurring or suspected of having occurred as a result of police action.

77. Section 24 of the IPOA Act empowers anyone wishing to lodge a complaint against the Police to do so either orally or in writing. Additionally section 25(1) of the IPOA Act provides that:-The Authority shall investigate any death or serious injury including death or serious injury while in Police custody, which are the result of Police action or were caused by members of the Service while on duty.

78. As stated above, the Independent Policing Oversight Authority provides a platform or mechanism where complaints against police officers can be lodged and investigated. The existence of Independent Policing Oversight Authority however does not oust the original and unlimited jurisdiction of the High Court as provided for in Article 165 of the Constitution.

79. Article 165 (3) of the Constitution provides: -Subject to clause (5), the High Court shall have—(a)unlimited original jurisdiction in criminal and civil matters;(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;(c)jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;(d)jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—(i)the question whether any law is inconsistent with or in contravention of this Constitution;(ii)the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;(iii)any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and(iv)a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.

80. Any party aggrieved by the conduct of a police officer is not disbarred from filing a Petition or suing in the High Court. It is also salient to note that the recommendations of the Independent Policing Oversight Authority after completion of their investigations end up as civil or criminal suits in the High Court.

81. For the present case, the doctrine of exhaustion does not apply because the Petitioner has alleged violation of the Constitution and rightfully invoked this court’s jurisdiction seeking various declarations. By directly filing the present Petition however, the Petitioner denied himself the forum for in depth investigation of the violations and an opportunity to prove his allegations against the Respondents. However, by dint of Article 165 of the Constitution, I shall determine the Petition on merits.

ii.Whether The Petitioner Offended The Provisions Of The Government Proceedings Act By Suing The 1st, 2nd And 3rd Respondents. 82. The 1st, 2nd and 3rd Respondents have stated that pursuant to Section 4(3) of the Government Proceedings Act, they could not be sued in their personal capacities in tortious claims committed in the course of their duties. The Petitioner on the other hand stated that he had sued them in their personal capacities as they had acted in a malevolent, capricious, criminal, brutal, barbaric, dictatorial, unprofessional, reckless, unlawful and prejudicial manner in the performance of their duties.

83. Section 4(3) of the Government Proceedings Act provides that: -Where any functions are conferred or imposed upon an officer of the Government as such either by any rule of the common law or by any written law, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Government in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

84. Section 12 of the Government Proceedings Act provides that:-(1)Subject to the provisions of any other written law, civil proceedings by or against the Government shall be instituted by or against the Attorney-General, as the case may be.(2)No proceedings instituted in accordance with this Part of this Act by or against the Attorney-General shall abate or be affected by any change in the person holding the office of Attorney-General.

85. The Petitioner’s case against the 1st, 2nd and 3rd Respondents were that they violated his rights under Article 49 of the Constitution by holding him in jail for 7 days without informing him the reason for his arrest. That while he was detained he was denied access to family members, a doctor and a lawyer. The Petitioner further stated that his rights under Article 25 of the Constitution were violated as he was subjected to untold torture, cruel, inhuman and degrading treatment while in custody.

86. The alleged violations listed above are in my view constitutional torts. The Black’s Law Dictionary, 10th Edition defines a constitutional tort as: -A violation of one’s constitutional rights by a government officer, redressable by a civil action filed directly against the officer.

87. The Court of Appeal in Gitobu Imanyara & 2 others v Attorney General (2016) eKLR, held that: -“It is important to state from the outset that damages arising out of Constitutional violations also known as Constitutional Tort Actions……..”

88. Similarly, in John Atelu Omilia & another v Attorney General & 4 others (2017) eKLR, Mativo J. (as he then was) held that: -“A "constitutional tort" refers to a private civil suit brought to redress a constitutional violation. [18] Constitutional torts are violation of one's constitutional rights by a government servant…..”

89. It is undisputed that the 1st Respondent was a police officer, former Officer Commanding Division in Konoin Sub County, the 2nd Respondent was the former Bomet County Commissioner and the 3rd Respondent was an officer from the Directorate of Criminal Investigations. It is also undisputed that the material time, they were all government employees or agents.

90. The Petitioner’s claim against the 1st Respondent was that he acted out of malice and ill will when he caused the Petitioner to be arrested, detained and charged before Sotik Law Courts. The claim against the 2nd Respondent was that he uttered defamatory material to the press on 6th and 7th May 2020 against the Petitioner. The claim against the 3rd Respondent was that he recommended the Petitioner to be charged with the offence of attempted defilement based on shambolic circumstantial evidence.

91. The Respondents submitted that this suit was incompetent as the 1st and 2nd Respondents had been sued in their individual capacities and not as public servants. The Respondents relied on John Muthoka Mutua & others vs Joyce W. Kombe & 3 others (2017) eKLR where the suit was dismissed on account of public servants being sued in their individual capacities.

92. The general rule as described above is that public servants such as the 1st, 2nd and 3rd Respondents cannot be sued in their individual or personal capacities. However, an exception to the general rule exists. Public servants can be sued in their individual capacities if they are shown to have violated the Constitution or acted outside the limits of their official duty. I am persuaded by Ngugi J. (as he then was) in Kimunai Ole Kimeiwa & 5 others vs Joseph Motari Mosigisi (The then District Commissioner, Rongai District) & 3 others (2019) eKLR, where he held: -“The Respondents are correct that when sued as a result of discharging one’s duties or functions, the proper course is to sue the Attorney General or the office and not the individual officer in their personal capacity. However, there are times when a particular Petitioner may feel that a public officer conducted himself so flagrantly that they were acting on their own; on their own frolic so to speak. In such circumstances, the Petitioner is at liberty to sue the public officer on their own in addition to suing the Government.”

93. In the present case and as noted earlier, the claims against the 1st, 2nd and 3rd Respondents were tortious actions and the law as provided in section 4(3) of the Government Proceedings Act was clear that such liability lay with the Government and not with the 1st, 2nd and 3rd Respondents individually.

94. Further, in regards to the 1st and 3rd Respondents, the National Police Service Act No. 11A of 2011 provides a police officer protection from personal liability in a claim that arose from the performance of his duties and further provides the right party to be brought before court in such an eventuality. Section 66 provides that: -(1)No matter or thing done by a member, employee or agent of the Service shall, if the matter or thing is done in good faith for the performance and execution of the functions, powers or duties of the Service, render the officer, employee or agent personally liable to any action, claim or demand whatsoever.(2)Subsection (1) shall not preclude a person from bringing legal proceedings against the Inspector-General in respect of an act or omission of the kind referred to in that subsection if the person can satisfy the court that the police officer or other person would, but for that subsection, have incurred liability for the act or omission.

95. I am persuaded by Chepkwony J. in Gilbert Musembi v Joseph Kaloki Kula & another (2021) eKLR, where she stated that: -“The above Section provides that if a party is to institute legal proceedings against the Police, the same should be brought against the Inspector-General in respect of any act or omission. The question then becomes, who represents the Office of the Inspector-General in legal proceedings.…………..I therefore, do not agree that misjoinder of the Inspector-General of Police and the Attorney General is a technicality that can be cured by Article 159(2) (d) of the Constitution as read with Order 1 Rule 9 and Rule 10(2) of the Civil Procedure Rules as alluded to by the Appellant. Section 12 of the Government Proceedings Act makes it mandatory that a state agency be represented by the Attorney-General.As shown herein, it was thus paramount that the Appellant sue the Inspector-General of Police and its legal adviser, the Attorney-General, and hence agree with the trial court that the Respondents herein were not the proper parties in the suit.”

96. Flowing from the above analysis and the law, it is my finding that the Petitioner could not sue the 1st, 2nd and 3rd Respondents in their individual capacity but he could sue for their perceived wrongful actions through the Attorney General. I find that the Attorney General was the right party to be sued unless the conduct of the 1st, 2nd and 3rd Respondents was so egregious as to attract personal liability.

97. Having found that the Attorney General was correctly sued as the 5th Respondent, I now consider the various breaches of the Constitution.

98. The Petitioner claimed that his constitutional right according to Article 49 of the Constitution was infringed upon when he was arrested and kept in detention for more than seven days. That he was arrested on 5th May 2020 and was presented in court on 12th May 2020. The Petitioner submitted that he was not informed promptly the reason why he was arrested. The Petitioner further submitted that the Constitution was explicit that an Accused ought to enjoy a fair trial from the point of arrest until the matter is concluded.

99. The 4th Respondent on the other hand stated that the Petitioner was arrested on 5th May 2020 and was presented to court on 7th May 2020 as the24 hour period allowed by the law to detain a suspect expired on 6th May 2020 at 7. 50 p.m. That he presented the Petitioner is court and sought more time to detain the Petitioner to allow them conclude their investigations. The 4th Respondent further stated that the trial court allowed them to detain the Petitioner for seven more days.

100. The 4th Respondent submitted that the Petitioner’s incarceration beyond 24 hours was therefore sanctioned by the court.

101. I have considered both averments and it is my finding that the Petitioner did not prove that he was illegally detained for more than seven days. He did not provide evidence to back up his assertion and therefore this assertion remained an allegation. On the other hand, the 4th Respondent attached a court order dated 7th May 2020 by Hon. Omwange J. in Sotik Criminal Case Number 16 of 2020 which allowed the 4th Respondent until 12th May 2020. This court order displaced the Petitioner’s claim that he was detained illegally for seven days.

102. The Petitioner also claimed that his right under Article 25 of the Constitution were infringed upon when he was locked in a crowded cell, beaten, deprived of food, sleep, water and the use of the toilet facilities. That he was coerced into a confession while in detention and that he was detained without access to his family members and advocate.

103. The Petitioner submitted that the absence of medical evidence that would exhibit his torture and ill treatment did not defeat his claim.

104. The 4th Respondent stated that the Petitioner had not demonstrated that he had been tortured or mistreated while in detention. That the 4th Respondent through No. 230952 CIP Tom Joseph Sibuna visited the Petitioner daily to ensure that he was in good condition and that the Petitioner never raised any complaint. The 4th Respondent stated that when the Petitioner appeared in court on 12th May 2020, he never raised the issue with the court. That the allegations of torture were mere fabrications and an afterthought.

105. The 4th Respondent submitted that the Petitioner had not demonstrated how he was tortured or mistreated.

106. I have considered both averments. The burden lay with the Petitioner to prove that he had been mistreated and tortured while in detention. This burden was not discharged as the Petitioner did not provide any evidence of the torture and ill treatment that he was subjected to. At the very least, he would have raised the complaint when first produced in court. Therefore, his assertion remained an allegation.

107. Flowing from the above, the Petitioner has not adduced evidence to show how the 1st, 2nd and 3rd Respondents acted ultra vires to their duty or violated the Constitution in exercise of their official duties. Therefore, the Petitioner’s prayer for a declaration that his rights and freedoms under Articles 25, 27, 28, 29, 47, 49 and 50(2) (a) of the Constitution of Kenya have been infringed upon fails.

iii.Whether There was a Claim of Malicious Prosecution Against The 4th Respondent. 108. The Black’s Law Dictionary, 10th Edition defines malicious prosecution as: -The institution of a criminal or civil proceeding for an improper purpose and without probable cause.

109. The principles involved in the tort of malicious prosecution were provided by the Court of Appeal in the case of National Oil Corporation vs. John Mwangi Kaguenyu & 2 others (2019) eKLR, where it stated that: -“…case law is replete on the issue of malicious prosecution. Of critical importance is that a litigant must establish malice. It is not sufficient to find one liable on the basis that he/she is the one who made the complaint. In the often-cited case of Murunga Vs. Attorney General [1979] KLR 138, the principles of the tort of malicious prosecution were spelt out. These are:-i)The defendant instituted the prosecution against the plaintiff.ii)The prosecution ended in plaintiff’s favour.iii)The prosecution was instituted without reasonable and probable cause.iv)The prosecution was actuated by malice.”

110. Similarly, in Bethwel Omondi Okal vs. Attorney General & another (2018) eKLR, Mwita J. stated: -“The law on false imprisonment and malicious prosecution is now well settled. For one to succeed, he/she must prove four elements. First that the criminal proceedings were instituted by the defendant who was instrumental in setting the law in motion against the plaintiff, second, that the defendant acted without reasonable or probable cause. Otherwise there must exist facts which show that the defendant genuinely believed that the criminal proceedings were justified; third, that the defendant must have acted maliciously. That is the defendant in instituting the criminal proceedings acted with improper or wrongful motive. and fourth, the criminal proceedings must have terminated in the plaintiff’s favour having been acquitted of the charge laid against him. (See Egbema vs. West Nile District Administration [1972] EA 60)From the above principles, it is therefore the law that a party who claims that he was unlawfully arrested falsely imprisoned and or maliciously prosecuted, bears the responsibility of proving that the arrest had no basis in law at all. It will not be enough for him to merely state that the arrest was unlawful…….”

111. The allegations of malicious prosecution against the 4th Respondent were civil in nature and ought to have been ventilated in the appropriate forum which is the civil court. In Grace Jepkemoi Kiplagat vs Zakayo Cheruiyot (2021) eKLR, Mutungi J. held that: -“………………….there are no Constitutional issues that warrant adjudication by the Court and that the Petition may very well Constitute an abuse of the due process of the court, I need to observe that parties are increasingly filing matters that are essentially Civil matters and christening the same as Constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary Civil Courts, a party ought not to invoke the jurisdiction of the Constitutional Court.”

112. That said, the Petitioner moved this court for determination of whether he was maliciously prosecuted. As I found earlier in this Judgment and by dint of Article 165 of the Constitution, I shall consider his claim on merit and in line with the following: -i.That the 4th Respondent instituted the prosecution against him.ii.The prosecution ended in his favour.iii.The prosecution was instituted without reasonable and probable cause.iv.The prosecution was actuated by malice.

113. On whether the 4th Respondent instituted the prosecution against the Petitioner, it was undisputed that the 4th Respondent initiated prosecution against the Petitioner. It was the Prosecution’s case that he was arrested and presented to court on 12th May 2021 where three counts of charges were read to him. On the other hand, it was the 4th Respondent’s case that after the police had completed their investigations, they charged the Petitioner. The 1st principle was therefore met.

114. On whether the prosecution terminated in the Petitioner’s favour, the Petitioner annexed a Ruling dated 17th December 2020 in Sotik Magistrate’s Court Sexual Offence Number 22 of 2020 and the same was marked as “DL 2”. In the said Ruling, the trial court acquitted the Petitioner under section 210 of the Criminal Procedure Code as the Prosecution had failed to establish a prima facie case against the Petitioner. The 4th Respondent on the other hand stated that an acquittal was not a ground to demand compensation. It was therefore clear that the existence of the said Ruling and the Petitioner’s acquittal was acknowledged by both the Petitioner and the 4th Respondent. The 2nd principle was therefore clearly met.

115. Courts have however held the position that an acquittal in a criminal case was not sufficient basis to infer malicious prosecution. In Nzoia Sugar Company Ltd v Fungututi(1988) eKLR, the Court of Appeal held that:-“It is trite learning that acquittal, per se, on a criminal case charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved……”

116. Similarly, in Samson Jumba & 3 others vs Hellen Jendeka Ndagadwa & 2 others (2021) eKLR, Musyoka J. held that: -“The mere fact that a prosecution terminated in favour of a party is not, by itself, sufficient proof of malicious prosecution…….”

117. Flowing from the above, it is my finding that the mere acquittal of the Petitioner by the trial court did not infer malice by the 4th Respondent’s decision to charge and prosecute him. It is not expected that every prosecution mounted by the Director of Public Prosecution should end in a conviction. If that were the case, then courts of law would cease to be the fountain of justice expected to convict only when a case is proved and likewise acquit when a case is not proved.

118. The other ground was that the Petitioner had to prove that the 4th Respondent instituted the criminal proceedings without reasonable and probable cause. In Kagane vs Attorney General, (1969) E.A, the East African Court of Appeal held that: -“………Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed……..”

119. Similarly in Stephen Gachau Githaiga & Another vs Attorney General (2015) eKLR Mativo J. (as he then was) held that: -“………As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused…….”

120. The terms reasonable and probable cause were further defined in the case of GLINSK v MCLVER (1962) AC 726 by Lord Devlin, who held that: -“reasonable and probable cause means that there must be sufficient ground for thinking that the accused was probably guilty but not that the prosecutor necessarily believes in the probability of conviction…”

121. It was the Petitioner’s case that the Respondents arrested and charged him on mere suspicion that he attempted to defile the minor B.C. That they charged with without any evidence of an intention to defile. It was the Petitioner’s further case that he was on duty on the material night and was part of the exempt essential service providers who were enforcing the Covid-19 curfew orders.

122. The Petitioner also stated that he was arrested as part of a retaliatory effort by the 1st Respondent (Alexander Lusega Shikondi) whom he accused of protecting the illegal illicit brew trade and the brewers.

123. The 4th Respondent stated that the Petitioner was found at around 7pm in the company of the minor in a car. That the car had been parked in deserted and dark garage. The 4th Respondent further stated that the minor was found on a reclined seat and that the car’s windows and doors had been closed.

124. It was the 4th Respondent’s case that the Petitioner who was a senior chief was not in uniform and was not accompanied by any security personnel as was the norm. That when the Petitioner was interrogated, he gave an unsatisfactory reason why he was in the company of the minor. It was the 4th Respondent’s case that the Petitioner admitted that he had been found with the minor at night.

125. I have considered both arguments and their submissions and I have noted that the Petitioner did not deny being found in the company of the minor at night. In his supporting affidavit dated 16th November 2021 he stated that they were arrested on 5th May 2020 in the company of the minor, B.C. Further, I have perused the trial court proceedings and Ruling annexed to the parties’ proceedings. Without commenting on the merits of the acquittal as this was not an appeal, I am inclined to believe that the 4th Respondent had reasonable cause to arrest and prosecute the Petitioner. It was reasonable for the Respondents to suspect the Petitioner’s behaviour as he was found alone in a dark secluded area with a minor inside his car. While it was his duty to enforce the Covid-19 curfew orders, it was expected that he would do so in the company of the security personnel as would be the norm and not in the company of a minor female in a dark secluded area inside his car. It is my finding that these were sufficient grounds to rouse suspicion and set in motion investigations which led to reasonable cause to mount a prosecution. The merits of the case was determined by the court which in exercise of its jurisdiction acquitted the Petitioner.

126. The last ground was that the Petitioner had to prove that the Respondents’ actions were motivated with malice. Malice is defined by the Black’s Law Dictionary, 10th Edition as: -The intent, without justification or excuse, to commit a wrongful act.

127. The Court of Appeal in the case of James Karuga Kiiru vs Joseph Mwamburi & 2 Others (2001) eKLR stated that:-“……….To prosecute a person is not prima facie tortious, but to do so dishonestly or unreasonably is. Malicious prosecution thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted.”

128. Similarly in the case of Kagane (supra), the East African Court of Appeal held that:-“…….The plaintiffs have further to prove that the prosecution was instituted with malice on the part of the prosecutor King. In this connection malice means that the prosecution was motivated by something more than a sincere desire to vindicate justice.

129. The Petitioner stated that the 1st Respondent had malice when he held him in police custody for a period of seven days while coercing and threatening him. As I have earlier found in this Judgment, the Petitioner failed to adduce evidence to show that the 1st Respondent acted ultravires to his official duty or violated the Constitution during the exercise of his official duty. It is my finding that the 1st allegation of malice was not proven.

130. The Petitioner had also stated that that the 1st and 2nd Respondents acted with malice in their press statement issued on 6th and 7th May 2020 to Citizen TV where they had claimed that the Petitioner was a “Chifu Mbakaji” which is loosely translated to a Chief Defiler. To support his claim, he attached a copy of certified transcript marked as DL 5. The Certified transcript was not produced as evidence. Once the Petitioner chose to rely on electronic evidence, he had to comply with the governing rules under the Evidence Act.

131. It is my finding that the Petitioner failed to prove his defamation claim against the 1st and 2nd Respondents. The remedy (if any) that the Petitioner would have against them would lie in a civil court where evidence is adduced and witnesses cross examined.

132. In light of the above, it is my finding that the Petitioner failed to prove his claim of malicious prosecution against the Respondents.

133. On the issue of the reliefs sought by the Petitioner, the Petitioner has failed to prove his case against the Respondents and was therefore underserving of the general, special and punitive damages sought. I agree with Musyoka J. in Dickson Chebuye Ambeyi vs National Police Service & another; Peter Sifuna Wesonga & another (Interested Parties) (2020) eKLR where he held: -“…………This is a simple claim for unlawful arrest, false imprisonment and malicious prosecution, all of which are torts. At common law, the usual way of prosecuting them is by way of plaint, and formal proof. The mere fact that there are constitutional provisions which cover the same subject, and that there is provision for litigation under the Constitution for redress, besides the usual civil process, does not obviate the need for formal proof. The principles governing what ought to be proved, or the standards of proof, are the same. It would have been wiser for the petitioner to simply mount a civil suit, in common law, by way of plaint, for compensation for the torts of false imprisonment, unlawful arrest and malicious prosecution. Let no one assume that the route of constitutional litigation somewhat provides the parties with a shortcut of sorts in cases of this nature.”

134. In the end, the Petition dated 18th November 2021 has no merit and is accordingly dismissed. I make no order on costs.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 10TH DAY OF NOVEMBER, 2023. .........................R. LAGAT-KORIRJUDGEJudgment delivered in absence of the Petitioner and in the presence of Ms Chepkemoi for the 1st, 2nd, 3rd and 5th Respondents, and Mr. Wainaina for the 4th Respondent. Siele (Court Assistant)