[2022] KEHC 12517 (KLR)

Muchui v High Court of Kenya Nairobi, Criminal Division & 2 others (Miscellaneous Petition 316 of 2019) [2022] KEHC 12517 (KLR) (Constitutional and Human Rights) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 12517 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Miscellaneous Petition 316 of 2019

HI Ong'udi, J

May 19, 2022

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 20(1) (2), 24(1) 27, 29(A) AND 39(1) OF THE CONSTITUTION OF KENYA 2010

Between

Stanley Thuranira Muchui

Petitioner

and

High Court of Kenya Nairobi, Criminal Division

1st Respondent

Chief Registrar of the Judiciary

2nd Respondent

Attorney General

3rd Respondent

Judgment

Introduction 1. The petitioner filed this petition dated August 8, 2019 claiming violation of his rights, under various articles of the Constitution. He has stated that he was convicted vide Makadara Chief Magistrate’s Court Traffic CaseNo 2133/2018 and sentenced to six (6) months imprisonment. This was on or about May 3, 2018.

2. Later on, Justice Kimaru while undertaking a decongestion exercise issued an order for his release. He gives the date of the release order as June 2, 2019 yet he claims to have been released on November 9, 2018. This could be an error.

3. According to him he served his full sentence despite the release order by Justice Kimaru.

4. His petition is supported by his sworn affidavit where he has averred that efforts to trace his file at the High Court Criminal Division at Milimani did not yield any fruits. For that reason the prison could not release him, as ordered by Justice Kimaru.

5. He depones that he filed an application vide Misc Application No 363 of 2018 but the same did not bear any positive results as he was not before the court during the hearing of the application.

6. He avers that his continued detention after being released was unlawful and violated his right to equal protection of the law under article 27 of the Constitution. He claims that his freedom of movement was curtailed during his illegal detention.

7. He therefore prays for the following orders:i.There be a declaration that the petitioner’s fundamental rights and freedoms under article 20(1), (2); 22(1); (23(1), 3(a); 24(1); 27; 29(a) (d), 39(1) of the Constitution of Kenya 2010 at all material times had been and were repeatedly contravened and grossly violated by the respondentsii.A declaration that the petitioners are entitled to the payment of damages as compensation for gross violations and contraventions of their fundamental rights and freedoms under the aforementioned provisions of the of Kenya, 2010. iii.General damages, exemplary damages under article 23(3) of the Constitution of Kenya, 2010. iv.Any further orders, writs, directions as this honourable court may consider appropriate.v.Costs of the petition.vi.Interest.

The Respondents’ case 8. The respondents filed 12 grounds of opposition, through the Attorney General. A summary of the said grounds is as follows:a.That the petitioner has failed to show how the respondents violated his constitutional rights.b.The office of the Attorney General does not have prosecutorial powers.c.The petitioner did not present any release orders to the prison to facilitate his release. His detention was therefore lawful having been detained in line with section 30 of thePrisoners Act.d.He did not plead his case with precision as set out in the case of Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others [2013]eKLR.e.He did not prove his case as provided for under sections 107 and 109 of the Evidence Act. Further, there is no justification made for the award of exemplary and general damages.

The Petitioner’s Submissions 9. The petitioner filed submissions dated November 27, 2020 through Githongori & Harrison Associates LLP advocates. Counsel gave a background of the case and identified 3 issues as falling for determination. These are:i.Whether the petitioner was unlawfully detained from the month of June to the November 9, 2018. ii.Whether the continued detention of the petitioner after the court ordered for his release was a violation of his fundamental rights.iii.Whether the petitioner is entitled to remedies sought in the petition.

10. On the first issue counsel submits that the continued incarceration of the petitioner after issuance of a release order by Justice Kimaru on June 2, 2018 was unlawful. His detention from June 2, 2018 – November 9, 2018 was unlawful and violated his constitutional rights.

11. Counsel further argues that the continued incarceration of the petitioner caused him psychological torture. He could not work or earn a living. This he says resulted in his family suffering, as he could not carry out his duties as a bus conductor.

12. Counsel submits that for the violation of the mentioned constitutional rights the petitioner is entitled to general damages to be assessed by the court. In support of this he relied on the following cases:i.Gitobu Imanyara & 2 others v Attorney General Civil Appeal No 98 of 2014 [2016]eKLR.ii.Siecochard Ramanoop VAG of TTPC Appeal No 13 of 2004. iii.Dendy v University of Witwatersrand, Johannesburg & others [2006] I LRC 29,iv.Daniel Waweru Njoroge & 17 others v Attorney General [2015] eKLR.

13. On exemplary damages counsel while relying on the case of Abdulhamid Ebrahim Ahmed v Municipal Council of Mombasa[2004]eKLR – High Court at Mombasa Civil Suit No 290 of 2000 submits that the 1st respondent completely abandoned the petitioner in this. That Misc No363 of 2018 would have remedied the situation but the 1st respondent ignored it and chose to dismiss it.

The respondent’s submissions 14. The respondents submissions which are dated February 8, 2021 were filed by Mr Marwa Christopher learned counsel for the Attorney General. Counsel identified the following as issues for determination:i.Whether respondents violated the petitioner’s rights;ii.Whether the petitioner was unlawfully detained;iii.Whether the petitioner is entitled to the remedies sought.

15. On the first issue he submits that the petitioner did not produce any evidence that an order of acquittal had been issued in his favour. That he failed to produce any letter or evidence in respect of the alleged missing file. He argues that the petitioner did not plead the petition with the necessary precision as is the requirement in constitutional petitions. He cites paragraph 7 of the petition where the petitioner listed a number of constitutional provisions allegedly violated. He did not however, demonstrate how the said articles were violated, the manner in which they were violated and the harm the violation occasioned.

16. Referring to the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR counsel submits that the burden of proving allegations of violations of fundamental rights and freedoms rests with the party making the claims. He contends that the petitioner did not adduce any evidence to support his claims. He also relied on the cases of (i)Augustion Mbugua v Inspector General of Police and another [2020] eKLR, (ii) Nakel Investments Limited & 2 others v David Gikaria & 3 others [2019] eKLR, in support of his arguments.

17. On the second issue counsel has referred to section 30 of the Prisoners Act and submits that prisoners have to follow laid down procedures before their release from prison. He argues that in the instant case the detention was lawful.

18. On whether general damages or exemplary damages should be paid counsel submits that no justification for such payment has been made. Reliance was placed on the case of Republic v Director of Public Prosecution Ex parte Merchant Capital Holdings Ltd & 2 others [201]eKLR. The respondents called for the dismissal of the case.

Analysis and determinationI have carefully considered the petition and supporting affidavit, grounds of opposition, both submissions, authorities cited and the law. The main issue I find falling for determination is whether the petitioner has proved a violation of his named constitutional rights. The next issue will be whether he is entitled to the reliefs sought if the first issue is answered in the affirmative. 19. The petitioners claim for compensation is premised on the alleged violation of several articles of the Constitution as per prayer no.1 of his petition. The respondents have denied any violation of the cited rights.

20. The law is clear that he who alleges a fact must prove it to the satisfaction of the court. Sections 106, 107 and 109 of the Evidence Act provide as follows:107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

21. Bearing the above in mind I now proceed to examine the material on record to determine whether the petitioner has established his case. From the petition and its supporting affidavit, notice of motion in Miscellaneous Criminal Application No.363/2018 it is indicated that the Petitioner was charged, convicted and sentenced on March 9, 2018 to six (6) months imprisonment by the Chief Magistrate’s Court Makadara. This was for the offence of touting vide Cr CaseNo 2133 of 2018.

22. There is nothing before this court to confirm such conviction and sentence by the said court. All that this court has is the petitioner’s affidavit alleging the facts. A letter to the High Court Criminal division (not the Deputy Registrar or Presiding Judge) from one Jane Ngugi for the Chief Magistrate Makadara and dated 3rd May, 2018 shows a list of files forwarded to the said Criminal Division. One of the traffic files forwarded is Traffic Case No 2133/2018 linked to Revision No 467/18. The name of the accused person in Traffic case file or applicant in the revision file is not indicated. The petitioner claims to have been the accused in the Traffic file and the applicant in the revision file. There is nothing to confirm that.

23. The petitioner claims that Revision file No 467/18 was said to have gone missing since the orders of release by Justice Kimaru, were made. The procedure has always been that once such orders are issued entries are made in the court register. Even if the file could not be traced an order could still be extracted from the entries in the register. The petitioner avers that it is his relatives/family members who were informed of the missing file by the staff at the registry. There is no evidence of any letter of complaint written to the Deputy Registrar, or presiding judge over these allegations.

24. There is also no communication from the Criminal Division over the allegedly missing file. From the proceedings in Miscellaneous Criminal Application No.363/2018 (STM 2) the record at page 2 shows that on July 5, 2018 Justice Kimaru in the presence ofM/s Sigei for State andM/sNamgemi holding brief for Munyosia for the applicant – the court issued an order calling for Makadara Chief Magistrate’s Traffic caseNo 2133/2018. He fixed the matter for mention the next day ie July 6, 2018, which was further moved to the July 10, 2018 in the presence of the petitioner’s counsel.

25. On July 10, 2018 neither the petitioner nor his advocate were present and the application was dismissed. The petitioner has criticized the court for dismissing the application, even if he and his advocate were absent. According to counsel the court should have just given release orders in favour of the petitioner.

26. The court had on July 5, 2018 called for the lower court file for a specific reason. The High Court will only revise any lower court decision upon being presented with the lower court original record, and/or given reasons in writing as to why the file cannot be availed. If indeed Justice Kimaru had ordered for the release of the petitioner as is claimed, then the original record of the Chief Magistrate’s court Makadara Traffic case No 2133/2018 would have had a copy of the order of release. That would have clearly confirmed to the Hon Judge that such an order had indeed been issued by him on June 2, 2018.

27. In the absence of Revision No 467/18 and Makadara Traffic Case No 2133/2018 or the Register, there was no way the Hon Judge would have issued the orders sought in Misc Cr ApplicationNo 363/2018, on July 10, 2018.

28. I have also observed that the petitioner having been convicted on March 9, 2018 for six (6) months he ought to have been released on September 9, 2018. He claims to have been released on November 9, 2018. Is the petitioner one and the same person who was convicted and sentenced to six (6) months on March 9, 2018? What was he doing in prison after September 9, 2018?

29. In the absence of all the evidence cited herein above including the alleged court order of June 2, 2018 setting the petitioner free, I find that there are too many gaping holes in the petitioner’s case. If indeed he was the one sentenced to six (6) months he has not explained why he remained in prison for eight (8) months. There must have been a lawful committal warrant, to that effect and that is why he is not blaming the prison for anything.

30. All in all I find that in the circumstances of this case the petitioner has failed to prove that the High Court at the Criminal Division and specifically Justice Kimaru had his sentence reduced to the period already served and ordered for his release, which release was not complied with.

31. The petition lacks merit and is dismissed. There shall be no order as to costs.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 19TH DAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT