[2018] KESC 19 (KLR)

Mwangi Stephen Muriithi v Daniel Toroitich arap Moi & Raymark Limited (Application 45 of 2014) [2018] KESC 19 (KLR) (5 October 2018) (Ruling)

Mwangi Stephen Muriithi v Daniel Toroitich arap Moi & another [2018] eKLR

Neutral citation: [2018] KESC 19 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Application 45 of 2014

DK Maraga, CJ & P, PM Mwilu, DCJ & V-P, JB Ojwang, SC Wanjala & NS Ndungu, SCJJ

October 5, 2018

Between

Mwangi Stephen Muriithi

Applicant

and

Daniel Toroitich arap Moi

1st Respondent

Raymark Limited

2nd Respondent

Ruling

Background (1)On 22nd May 1982, the applicant was arrested by police and upon failure to trace him for three days, his wife filed an application in the High Court for an order of Habeas Corpus under Section 389 of the Criminal Procedure Code. Chesoni J (as he then was) issued a summons to the Director of the Criminal Investigations Department to appear before court and show cause why the applicant could not be released forthwith. On the date set for the hearing of the application, that is on 28th May 1982, the High Court was served with a detention order of even date placing the applicant under preventive detention. In those circumstances, the High Court dismissed the Habeas Corpus application holding that the police had discharged their burden of showing cause why the applicant could not be released immediately as he had been detained.

(2)On 23rd October 2009, the applicant invoked the provisions of Section 84 of the repealed Constitution and filed a petition in the High Court (Petition No. 625 of 2009) against the 1st respondent in which he alleged that, in abuse of his powers as President of the Republic of Kenya, the 1st respondent had caused the applicant to be placed under detention without trial “for the purpose of illegally and unconstitutionally depriving the … [applicant] of his property rights.” The applicant further claimed in that petition that during his detention and thereafter, the 1st respondent disposed of and ravaged the applicant’s interest in various properties he had jointly owned with the 1st respondent and others. He therefore sought, inter alia, a declaration that his fundamental right to freedom under Section 72 and to property under Section 75 of the repealed Constitutions had been violated; and an order for compensation for the properties the 1st respondent had allegedly deprived him of. The 2nd respondent as the registered owner of one of those properties was later joined in that petition.

(3)After hearing the case, Gacheche, J. (as she then was) granted the applicant the declarations that the 1st respondent had, in abuse of his powers, caused the applicant’s detention to deprive him and did deprive him of his property. Consequent upon those declarations, she awarded the applicant Kshs. 50 million as punitive damages for unlawful detention and Kshs. 80 million (odd) as the value of his interest in the properties the 1st respondent illegally disposed of plus compound interest on both sums.

(4)On appeal by the respondents, the Court of Appeal (Civil Appeal No. 240 of 2011), reversing the High Court decision, held that with no appeal from Chesoni, J’s decision that the applicant’s detention was lawful under the then existing law, the matter was res judicata and the trial judge had no basis for awarding damages on that detention. As regards the award of damages for alleged lost property, the Court of Appeal held that the same had not been proved to the required standard. Consequently, the Court of Appeal set aside both awards and the entire judgment with costs to the respondents.

Application (5)Aggrieved by that decision, the applicant sought certification from the Court of Appeal under Article 163(4)(b) and Rule 24(1) of the Supreme Court Rules, 2012 to appeal to this Court on the ground that the intended appeal would raise matters of general public importance. In its ruling of 7th November 2014, in Civil Application No. 10 of 2014, the Court of Appeal at Nairobi (Nambuye; Gatembu and M’Inoti, JJA), dismissed that application. This application seeks a review of that ruling and certification to appeal to this Court against the Appellate Court’s decision of 9th May 2014 dismissing the applicant’s appeal.

(6)As this Court stated in the case of Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Sup. Ct. Appl. No. 4 of 2012 [2013] eKLR, a decision it had also made in Peter Oduor Ngoge v. Hon. Francis Ole Kaparo & 5 Others [2012] eKLR (Supreme Court Petition No. 2 of 2012) and reiterated in many other subsequent decisions, an applicant seeking such certification “must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case….” If it is a point of law, he “must demonstrate that such point is a substantial one, the determination of which will have a significant bearing on the public interest.” The question is whether or not this threshold has been satisfied in this case.

(7)In their written submissions, Messrs Mwangi & Guandaru Advocates, counsel for the Applicant argued that the rights of a person detained under the former Constitution and the legality of such detention are matters of general public importance.

(8)In response counsel for the respondents argued in their written submissions that the intended appeal is premised on matters of narrow commercial and private interests of the Applicant which have no significant bearing on public interest. On the issues of the law on res judicata, habeas corpus and burden of proof that the applicant intends to raise, counsel argued that these are ordinary principles of law that have previously arisen and have been settled by the Court of Appeal and the High Court in many cases and need no further input from this Court. They concluded that this application does not therefore meet the criteria of a matter of general public importance and in the circumstances, this Court has no jurisdiction to entertain the matter.

(9)Upon consideration of these rival submissions, we find that the issues of(i)whether or not a habeas corpus application bars proceedings for enforcement of fundamental rights and freedoms; and(ii)a court order in a habeas corpus application could determine the legality of a detention under the provisions the Preservation of Public Security Act (now repealed) to be matters of general public importance, which transcend the circumstances of this particular case.

10. Consequently, we review the Court of Appeal’s decision of 7th November 2014 and grant the applicant leave to file his appeal under Article 163(4)(b) of the Constitution. The costs of this application shall abide the outcome of the intended appeal.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF OCTOBER, 2018. .......................... ......................D. K. MARAGA P. M. MWILUCHIEF JUSTICE & PRESIDENT DEPUTY CHIEF JUSTICE & VPSUPREME COURT OF KENYA SUPREME COURT OF KENYA......................... ............................J. B. OJWANG S. C. WANJALAJUSTICE OF THE SUPREME JUSTICE OF THE SUPREMECOURT COURT...........................N. S. NDUNGUJUSTICE OF THE SUPREMECOURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA