[2022] KEHC 12339 (KLR)

Makokha v Commissioner General of Prisons & 3 others (Petition 46 of 2019) [2022] KEHC 12339 (KLR) (Constitutional and Human Rights) (9 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12339 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 46 of 2019

HI Ong'udi, J

June 9, 2022

Between

David Misiko Makokha

Petitioner

and

Commissioner General of Prisons

1st Respondent

Officer in Charge Kamiti Prisons

2nd Respondent

Cabinet Secretary, Ministryof Interior And Coordination Of National Government

3rd Respondent

Attorney General

4th Respondent

Judgment

Petition 1. The petitioner filed a petition dated 8th February 2019 seeking the following reliefs:-a)A declaration due hereby issue that the 1st and 2nd respondents decision and/ or action of unlawfully failing to release the petitioner from prison despite him serving his rightful and lawful sentence is a violation of his right to be treated with dignity, right to fair administrative action that is lawful and reasonable, freedom of movement, right to own property, freedom from torture, access to information, under articles 27, 28, 32, 33, 35, 39, 40, 47, 48 and 51 of the constitution.b)That consequently, an order do issue directing the respondents to compensate the petitioner for loss of earnings amounting to Kshs. 252,000. c)That an order do issue directing the respondents to either severally or jointly compensate the petitioner for the inconvenience, embarrassment, waste of time, torture, unlawful detention and breach of his fundamental constitutional rights under articles 27, 28, 32, 33, 35, 39, 40, 47, 48 and 51 of the constitution.d)The costs of this petition be provided for.e)Any other order that this Honourable Court may deem just and fit in the circumstance.

The Petitioner’s case 2. A summary of his case as set out in the petition and affidavit in support of the petition sworn on 8th February 2019 is that, on 21st October 2014, he was sentenced on his own plea of guilty in Nairobi C.M’s Court Criminal Case Number 1482 of 2014 to imprisonment for a total of 12 months on 4 different counts.

3. Consequently, he was reprimanded at Kamiti Prisons where he served the 12 months. At the end of the said period and upon request to be released, he was informed by the Officer in Charge that he could not be released without any reasons.

4. Subsequently, he was kept in prison for 2 years and 2 months instead of the 12 months and being the first born and sole breadwinner for his family he was unable to continue with his employment where he was earning at least Kshs. 18,000/- monthly.

5. He was eventually released after filing High Court Criminal revision No. 452 of 2016 for revision of sentence to compel the 1st and 2nd respondents to ensure his production in court but before the same could be heard.

6. By reason of the aforesaid actions, the 1st and 2nd respondents violated Articles 10, 27, 35, 39, 40, 47, 48, and 51 of the constitution.

Respondents’ case 7. The respondents filed Grounds of Opposition dated 13th February 2021. A summary of the grounds are that:-i)The petition failed to meet the requirements for the grant of the orders sought in the petition.ii)The petitioner has violated section 107 of the Evidence Act for failure to adduce any evidence in support of any claim in the petition including that of specific damages.iii)Contrary to his claim of denial of access to justice by his own admission as pleaded in the petition he had access to the courts and filed an application for revision which was heard and determined.iv)The petitioner failed to draw a nexus between the loss of his employment and the actions of the respondents, having been incarcerated following his own plea of guilty.v)The petitioner did not demonstrate how any action by the respondents violated his rights under articles 27, 28, 32, 33, 35, 39, 40, 47, 48 and 51 of the constitution. Further he failed to meet the requirements in Anarita Karimi Njeru v Republic; Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR; and the Mutunga Rules.vi)The petition is vague, full of glaring conjectures and does not raise any questions for constitutional interpretation by this Honourable Court.vii)The petitioner did not make a case for the grant of the remedies sought and as such the petition is frivolous, vexatious and an abuse of the court process. It ought to be dismissed with costs to the respondents.

The Petitioner’s submissions 8. The petitioner filed submissions dated 1st November 2021 raising four issues:-a.Whether the petitioner was unlawfully detained?b.Whether the petitioner’s fundamental rights were infringed upon by the actions of the respondent?c.Whether the respondents should, either severally or jointly compensate the petitioner for the inconvenience, waste of time, torture, unlawful detention and breach of his fundamental constitutional rights and loss of earnings under Articles 27, 28, 32, 33, 35, 39, 40, 47, 48 and 51 of the constitution?d.Whether the Respondents should meet the costs of this petition

9. On the first issue, he submitted in the affirmative that he served an unlawful period of 14 months imprisonment.

10. On the second issue, he argued that Article 25 provides that one of the rights and fundamental freedoms that shall not be limited is the freedom from torture and cruel, inhuman or degrading treatment or punishment. His rights under Articles 25 were infringed upon by the unlawful actions of the respondents. He was treated in an inhuman and degrading manner and was also tortured psychologically due to the respondents’ cruel and unlawful actions unlawfully detaining him in prison for an extra 14 months with no cause.

11. They also breached his rights under Articles 28, 29 and 39 of the constitution. The respondents have not denied having violated them.

12. Regarding the third issue, he submitted that the respondents ought to compensate him in general damages, aggravated damages and exemplary damages for violating his fundamental constitutional rights. Further, it can be inferred that the respondents admitted to infringing the petitioner’s rights as they have never denied assertions or filed response to the contrary. Relying on the cases of Mohamed Feisal & 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR;Job Nganga Thiongo v Kamiti Medium G. K. Prison & 3 others [2013] eKLR; John Mureithi Kiagayu vs R Petition No. 141 of 2011 (2013) KLR as quoted in Susan Nyathira v Commission of Police & 2 others [2015] eKLR; Nakuru High Court Petition No. 7 of 2010 Lechornai Lorkurani vs A.G; Captain (Rtd) Frank Mbugua Munuku v Kenya Defence Forces & another [2013] eKLR and Nairobi High Court Petition No. 340 of 2012 David Gitau Niau & 9 others vs AG, he urged the court to grant Kshs. 5,000,000/-.

13. On the fourth issue, he submitted that he had proven his case as per the lawful threshold against the respondents and urged this court to exercise its discretion in his favor and grant him the costs of the petition.

The Respondents’ submissions 14. The respondent filed submissions dated 19th November 2021 by learned counsel Mitchelle Omuom raising two issues. On whether the petitioner has made a case for grant of a declaration of violation of his rights, she submitted that the petitioner failed to meet the requirements of specificity in drafting as relates to constitutional petitions as outlined within the Mutunga Rules and various case laws. She relied on Anarita Karimi Njeru v Republic [1976- 80] 1KLR reiterated in Mumo Matemu v Trusted Society for Human Rights Alliance & 5 others [2013] eKLR; Anami Silverse Lisamula v IEBC & 2 others SCK No. 9 of 2014[ 2014] eKLR; George Mike Wanjohi v Stephen Kariuki SCK No. 6 of 2014 [2014] eKLR; Kenya Youth Parliament & 2 others v Attorney General & Another and Attorney General v WK Butambala [1993] TLR 46; Cyprian Kubai v Stanley Kanyonga Mwenda HMISC 612/02.

15. Counsel argued that the petitioner while claiming to have had his rights violated failed to specifically outline which rights were violated and the manner in which the violations occurred. The alleged violations of the constitution by the respondents in the petition were simply a regurgitation of the constitution without demonstrating any manner in which the respondents through their actions violated the same.

16. According to the respondents, the petitioner failed to establish the basis for the claim for violation of his rights under Articles 27, 28, 32, 33, 35, 39,40, 47, 48 and 51 of the Constitution contrary to the principles set out in the Anarita Karimi case (supra). Further the petitioner demonstrated that he was lawfully incarcerated having pleaded guilty, to the charges.

17. They argued that the petitioner failed to demonstrate that he brought to the attention of the respondents the alleged miscalculation of his sentence. He was released as per the order of the court in criminal revision 452 of 2016 thereby demonstrating a willingness by the respondents to obey the orders of the court once brought to their attention.

18. Relying on Section 107 of the Evidence Act and Ahmed Mohammed Noor v Abdi Aziz Osman [2019] eKLR, they argued that the petitioner failed to discharge his burden of proving the fact of earnings and therefore not entitled to any monies or any findings in his favor.

19. On whether the petitioner made a case for the grant of remedies sought, it was argued that the petitioner did not supply evidence on the Kshs. 250,000/- sought in support of the claim for lost earnings, nor proof of employment prior to his conviction. They argued that a review of the criminal proceedings revealed that he was sentenced on his own plea of guilty, therefore any earnings lost must be attributed to his own actions starting with the conviction on his own plea of guilty. They relied on Rukia Abdi Manya & another v Officer Commanding Police Station Haba Swein & another [2020] eKLR for that argument. They therefore urged the court to dismiss the petition with costs.

Analysis and determination 20. Having carefully considered the parties pleadings, submissions, cited cases, and the law I find the following issues to arise for determination: -i.Whether the petitioners rights were violatedii.Whether the reliefs sought should be granted

i. Whether the petitioners rights were violated 21. The petitioner argued that his rights under Articles 27, 28, 32, 33, 35, 39, 40, 47, 47, 48 and 51 of the Constitution were violated by the respondents as a result of him being unlawfully incarcerated for 26 months (2 years and 2 months) instead of the 12months. Further that he suffered loss of earning of Kshs. 252, 000/-.

22. The respondents argued that the petitioner had just made a regurgitation of the constitutional provisions, without demonstrating the manner in which the said provision were infringed upon by any of the actions of the respondents or the basis for the violation of the stated constitutional provisions. They further argued that the loss of earnings was not proved and that in any case this was occasioned by his own doing as he was incarcerated on his own plea of guilty.

23. It is trite that when it comes to a matter concerning the violation of human rights the same must be specifically set out with precision. This is well expended in the case of Anarita Karimi Njeru vs Republic (1979) eKLR where the court stated that :-“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

24. The case of Memo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLR also reaffirmed the position in Anarita Karimi Njeru (supra).

25. Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides for the form of a petition as follows:-(2)The petition shall disclose the following:-(a)the petitioner’s name and address;(b)the facts relied upon;(c)the constitutional provisions violated;(d)the nature of injury caused or likely to be caused to the petitioner of the person in whose name the petitioner has instituted the suit; or in a public interest case to the public, class of persons or community;(e)details regarding any civil or criminal case , involving the petitioner or any of the petitioners, which is related to the matters in issue in the petition;(f)the petition shall be signed by the petitioner of the advocate of the petitioner; and(g)the relief sought by the petitioner

26. In Humphrey Mutegi Burini & 9 others v Chief of the Kenya Defence Forces & another [2017] eKLR, Mativo J, stated the following on pleading with precision;“28. There are numerous court decisions by the superior courts in this country stating that it is important for a person seeking redress from the High Court or an order which invokes a reference to the Constitution, to set out with reasonable degree of precision, what he complains of, the provisions of the Constitution infringed, and the manner in which they are alleged to be infringed. Thus an applicant in an application alleging violation of constitutional rights is obliged to state his complaint, the provisions of the Constitution he considers has been infringed in relation to him/her, and the manner in which he believes they have been infringed. Those allegations are the ones which if pleaded with particularity invoke the jurisdiction of the court under the provision. It is not enough to allege infringement without particularizing the details and manner of infringement.”

27. In Communications Commissions of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the supreme court had this to say on constitutional petitions;“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”Also see Khen Kharis Mburu v Inspector General Police Service & 3 others [2019] eKLR;Japheth Ododa Origa v. Chancellor University of Nairobi & 2 others [2018] eKLR

28. Based on the cited provisions of the law and case law, it is important that the petitioner not only points out to the court the constitutional provisions violated but the manner in which they were violated. This is something I find the petitioner not to have demonstrated. A review of the petition as pleaded demonstrates that under the subheading violations of the constitution, the petitioner, as rightly stated by the respondents has only stated what the said constitutional provisions entail but has not demonstrated the manner of infringement. In my view, the petition as drafted does not meet the threshold in the Anarita Karimi Njeru (case).

29. That notwithstanding, can this court invoke the provisions of Article 159(2) (d) of the constitution which provides that justice shall be administered without undue regard to procedural technicalities? The court of appeal in the case of Mumo Matemu v Trusted Society for Human Rights Alliance & 5 others [2013] eKLR stated;“(41) We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.(42) However, our analysis cannot end at that level of generality. It was the High Court’s observation that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting.” Yet the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”

30. In my view, were this court to take that approach of Article 159 (2) (d) still that argument cannot stand. Justice demands that the other party is put in a position where they are able to respond to the allegations against them. It is undisputed that the petitioner has established the factual basis, he has further cited the constitutional provisions infringed upon but what causes the quagmire is the fact that he has not demonstrated how the said cited constitutional provisions have been infringed upon.

31. Nonetheless were this court to find that the petition was properly pleaded, then the next question would have been to determine whether the petitioner has proved the constitutional violations. Section 107 of the Evidence Act is explicit that whoever alleges must prove.

32. The petitioner claims to have been kept in prison for 26 months instead of 12 months. The trial court convicted and sentenced him as follows:-C1- sentenced to 12 monthsC2 – Fined Kshs.50,000/- i/d 12 months imprisonmentC3- Fined Kshs.15,000/= i/d 6 months imprisonmentC4 – fined Kshs.50,000/= i/d 12 months imprisonmentThe court made an order that: “fines shall be cumulative sentence to run concurrently.”

33. The law is that when one has been fined, the default sentences can NEVER run concurrently. In this case there is no evidence that the petitioner paid the fine. It follows that on top of the 12 months in count 1 he had to serve the full default sentences in the rest of the counts only less the commuted sentence. The total sentence was 42 months less commuted sentence (1/3 x 42 = 14). Therefore the sentence to be served was 28 months, i.e. 42 - 14.

34. Even if the learned Magistrate’s order was to be followed it is only the fines which were to be cumulative and the sentences of 12 months, 6 months and 12 months to run concurrently. It then meant that for his failure to pay fines he would have served a concurrent sentence of 12 months + 12 months in count 1 = 24 months.

35. The Law must be followed to the letter. With all due respect to the learned trial Magistrate she had no authority to turn consecutive sentences into a concurrent sentence as she did. The above being the position I find that the petitioner has failed to prove that he overstayed in prison or served an unlawful sentence. If anything he was lucky to have served 26 months instead of the 28 months.

36. The 1st & 2nd respondents know very well how concurrent and consecutive sentences should run. In the event that they are served with orders that are contrary to the law they should apply to have the files placed before a Judge of the High Court for interpretation and/or revision.

37. With the above analysis it is clear that the petitioner has completely failed to prove violation of any of the provisions of the constitution he cited. His prayer for loss of damages of Kshs.252,000/= is a special damage which was not specifically pleaded nor proved at all. There was nothing to show he was earning Kshs.18,000/= and would be earning kshs.25,000/= upon his release or let alone being retained in the same job.

ii. Whether the orders sought should be granted 38. From the findings this court has made, the petitioner is not entitled to any of the reliefs sought. Costs usually follow the event, however in this case the fairest thing to do is to have each party bear its own costs.

39. The upshot is that the petition is dismissed. Each party to bear its own costs.

DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE IN OPEN COURT AT MILIMANI NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT