[2022] KEHC 162 (KLR)

Ndire v Cabinet Secretary, Ministry of Defence & another (Petition 46 of 2020) [2022] KEHC 162 (KLR) (4 March 2022) (Judgment)

Neutral citation number: [2022] KEHC 162 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition 46 of 2020

JM Mativo, J

March 4, 2022

Between

Nicholas Munene Ndire

Petitioner

and

Cabinet Secretary, Ministry of Defence

1st Respondent

Attorney General

2nd Respondent

Judgment

1)The factual background which triggered this Petition is essentially common ground or uncontroverted. For example, there is no contest that the Petitioner Mr. Nicholas Munene Ndire was enlisted in the Kenya Defence Forces on 3rd November 2013. It is common ground that the Petitioner was charged with the offence of desertion contrary to section 74 (1) (a) as read with section 74 (2) (e) and 73 (3) (b) of the Kenya Defence Forces Act1 (the Act) for absenting himself from the Kenya Navy Base, Mtongwe without official leave from 14th July 2015 to 9th December 2015, a period of 159 days. He was convicted of the said offence and sentenced to serve 4 months imprisonment in addition to being dismissed from service. His appeal against the said decision was dismissed on 12th March 2019. 1Act No. 25 of 2012.

2)The point of divergence is that the Petitioner avers that prior to the trial he was held under close arrest for more than 72 hours without any justifiable reason in breach of his constitutional rights. As a consequence, he prays for a declaration that his detention for a period longer than provided by the Constitution violates his rights. He prays for general damages for breach of his constitutional rights and costs of the Petition. He also prays for any other relief this court may deem appropriate.

3)The Respondent’s opposition to the Petition is contained in the Replying affidavit of Major Daniel Mutunga Mutua, a Staffing Officer 11 Records at the Kenya Navy Headquarters in charge of personnel records dated 28th December 2020. The salient features of the opposition as I glean them from the said affidavit are:- (i) that the Petitioner was tried and convicted for the offence of desertion contrary to section 74 (1) (a) as read with section 74 (2) (e) and 73 (3) (b) of the Act; (ii) his appeal against the conviction and sentence was dismissed; (iii) Article 24 (f) of the Constitution and section 54 of the Act permits limitation of Article 49 rights; (iv) section 140 of the act provides for avoiding delay after arrest; (v) the Petitioner has not annexed documents to substantiate his allegations that he was held for 42 days; (vi) the Petition lacks merits.

4)The Petition was canvassed by way of written submissions. The Petitioner’s counsel submitted that section 140 (4) of the Act provides for an aggregate period of not more that 42 days, while sub-section (5) provides that where the proceedings have not been commenced within the said period, the commanding officer shall hold the accused in open arrest on such conditions as the commanding officer may determine. He argued that out of the 588 days the Petitioner was held, he was in close arrest for 198 days, longer than the law permits in violation of his rights under Article 29 of the Constitution. He cited Jamlik Muchangi Miano v Attorney General2 in which the court awarded damages of Kshs. 5,000,000/= and urged the court to award a similar amount.2{2012} e KLR.

5)The Respondents’ counsel submitted that the Petition lacks merits and it is an abuse of court process. He submitted that the judge Advocate in his judgment took into account the period the Petitioner was held in custody. Additionally, he argued that no document was annexed to support the alleged detention. He cited Peter Ngari Kagume & others v The Hon. Attorney General3 in support of the proposition that the party alleging violation of rights bears the burden of prove. Additionally, counsel submitted that the section 54 of the Act permits limitation of rights under Article 49 of Constitution for members of the Kenya Defence Forces. Also, that the limitation is expressly provided under Article 24 (5) (f) of the Constitution. He argued that the Petitioner was put in open arrest in conformity with Article 140 (2) of the Act and referred to the annextures to the Replying affidavit.3Constitutional Petition No. 128 of 2006.

6)Clearly, this Petition is anchored on the provisions of Article 49 of the Constitution which provides: -49. Rights of arrested persons(1)An arrested person has the right—(f) to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;

7)The Petitioners’ argument is appealing. However, the argument ignores a pertinent issue, which is Article 49 rights are not absolute. The rights do not fall under the non-derogable rights stipulated in Article 25 of the Constitution. The argument ignores the vibrant provisions of Article 24 which provides for limitation of rights and fundamental freedoms as follows:1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—(a)the nature of the right or fundamental freedom;(b)the importance of the purpose of the limitation;(c)the nature and extent of the limitation;(d)the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and(e)the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.(2)Despite clause (1), a provision in legislation limiting a right or fundamental freedom—(a)in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;(b)shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and(c)shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.(3)The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.(4)The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.(5)Despite clauses (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service—(a)Article 31—Privacy;(b)Article 36—Freedom of association;(c)Article 37—Assembly, demonstration, picketing and petition;(d)Article 41—Labour relations;(e)Article 43—Economic and social rights; and(f)Article 49—Rights of arrested persons.

8)I find it necessary to restate the well-known general principles relating to constitutional interpretation, which are, in any event, incontrovertible. The first principle is that the Constitution of a nation is not to be interpreted like an ordinary statute. In his characteristic eloquence, the late Mahomed AJ described the Constitution as 'a mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government.' The spirit and tenor of the Constitution must therefore preside and permeate the process of judicial interpretation and judicial discretion.4In keeping with the requirement to allow the constitutional spirit and tenor to permeate, the Constitution must not be interpreted in ‘a narrow, mechanistic, rigid and artificial’ manner.5Instead, constitutional provisions are to be ‘broadly, liberally and purposively’ interpreted so as to avoid what has been described as the ‘austerity of tabulated legalism.’6It is also true to say that situations may arise where the generous and purposive interpretations do not coincide.7 In such instances, it was held that it may be necessary for the generous to yield to the purposive.8 Secondly, in interpreting constitutional rights, close scrutiny should be given to the language of the Constitution itself in ascertaining the underlying meaning and purpose of the provision in question.94S v Acheson 1991 NR 1(HC) at 10A-B.5Government of the Republic of Namibia v Cultura2000 1993 NR328 (SC) at 340A6Id at 340B-C.7See the South African Constitutional Court cases of S v Makwanyane1995 (3) SA 391 (CC) at Para [9] footnote 8; Soobramoney v Minister of Health (KwaZulu-Natal)1998 (1) SA 765 (CC) at para 17. 8Kauesa v Minister of Home Affairs and Others1995 NR 175 (SC) at 183J-184B; S v Zemburuka(2) 2003 NR 200 (HC) at 20E-H; Tlhoro v Minister of Home Affairs 2008 (1) NR 97 (HC) at116H-I; Schroeder and Another v Solomon and 48 Others2009 (1) NR 1 (SC) at 6J-7A; Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia 2009 (2) NR 596 (SC) at 269B-C.9Minister of Defence v Mwandinghi1993 NR 63 (SC); S v Heidenreich1998 NR 229 (HC) at 234.

9)A reading of the Chapter 4 of the Constitution leaves no doubt that the Bill of Rights applies to all persons. However, while the rights listed in Article 25 of the Constitution cannot be limited in any manner, all the other rights in the Bill of Rights can be limited as provided by Article 24 of the Constitution. In this regard, Article 24 (5) clearly provides that the rights listed therein include Article 49 rights can be limited by national legislations, as long as that limitation is reasonable and justifiable in an open and democratic society.

10)The limitation clause at Article 24 has a four-fold purpose. First, it functions as a reminder that except the rights listed in Article 25, all the other the rights enshrined in the Constitution are not absolute. The rights may be limited where the restrictions can satisfy the tests laid out in the limitation clause. Secondly, the limitation clause tells us that rights may only be limited where and when the stated objective behind the restriction is designed to reinforce the values that animate this constitutional project. As is evident from the nomenclature deployed in the entire constitution, the same values that inform our what constitutes a justifiable limitation on a right — openness, democracy, dignity, equality, and freedom — also flesh out the extension of the individual rights themselves. Thirdly, the test set out in the limitation clause — with a bit of judicial amplification — allows for candid consideration of those public goods or private interests that the challenged law sets in opposition to the rights and freedoms enshrined in Chapter 4 of the Constitution. Fourthly, the limitation clause could be said to represent an attempt to finesse the 'problem' of judicial review by establishing a test that determines the extent to which the democratically elected branches of government may craft laws that limit constitutionally protected rights and the extent to which the judiciary may override the general will by reference to the basic law.

11)Before me is not a challenge on the constitutional validity of the provisions of the Kenya Defence Forces Act which limit Article 49 rights. Even if that was the case, The first question to be asked is whether the provision in question infringes the rights protected by the substantive clauses of the Bill of Rights. If it does, the next question that arises will be whether that infringement is justifiable. At the second stage of the constitutional enquiry, the relevant questions are what is the purpose of the impugned provision, what is its effect on constitutional rights and is the provision well-tailored to that purpose.

12)I must underscore that as a general matter, constitutional analysis under the Bill of Rights takes place in two stages. First, the applicant must demonstrate that the exercise of a fundamental right has been impaired, infringed, or, to use the Constitution's term of art, limited. This demonstration itself has several parts. To begin with, the applicant must show that the conduct for which he/she seeks constitutional protection is a form of conduct that falls within the ambit of a particular constitutional right. If he/she is able to show that the conduct for which she/he seeks protection falls within the value-determined ambit of the right, then He/she must show, in addition, that the law or the conduct he/she seeks to challenge impedes or limits the exercise of the protected right.

13)If the court finds that a challenged law or conduct infringes the exercise of the fundamental right, the analysis may move to a second stage. In this second stage of analysis, the party that would benefit from upholding the limitation will attempt to demonstrate that the infringement of a fundamental right is justifiable. This second stage of analysis occurs, generally speaking, not within the context of the fundamental right or freedom, but within the limitation clause. I say may move to a second stage for two reasons. First, where the limitation does not take place in terms of law of general application, then no opportunity arises to offer a justification. In the instant case, the applicant has not gone beyond the first inquiry.

14)It follows that if the inquiry proceeds to the second stage, the reasons given must not only be lawful, but they must meet the Article 24 analysis test in that it must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

15)Article 24 (5) provides that despite clauses (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service—(f)Article 49—Rights of arrested persons. Talking about a provision in legislation limiting a fundamental right, section 54 of the Kenya Defence Forces Act provides for limitation of rights of an arrested person as follows: -(1)The rights of an arrested person in Article 49 of the Constitution may be subject to limitation in respect of a person to whom this Act applies as set out in subsections (2) and (3).(2)Nothing contained in or done under the authority of this Act shall be held to be inconsistent with or in contravention of the right of an arrested person in so far as the Act permits—(a)the holding of an arrested person jointly with the persons serving a sentence;(b)the holding of an arrested person without bail; or(c)the holding of an arrested person in custody notwithstanding that the offence is punishable by a fine only or imprisonment for a term not exceeding six months.(3)An accused person shall not be held in custody for more than eight days before he or she is arraigned before a commanding officer or a court-martial unless the commanding officer, for reasons to be recorded in writing, is satisfied that the continued arrest of the accused person is necessary.(4)The commanding officer shall review his or her decision in subsection (3) after the lapse of eight days until the accused person is brought before a commanding officer or a court-martial.

16)The Petitioner has not demonstrated that the above provisions were not complied with. On the contrary, the Respondent exhibited 5 delay reports prepared pursuant to section 140 (2) (a) of the Act. The procedural and legal validity of these reports has not been challenged. These reports are to say the least a manifestation of compliance with the law. Unless the legal validity of the said reports is successfully challenged, the Petitioner’s case founded on alleged detention outside the period permitted by the law cannot succeed.

17)Even if the above reports were absence, the Petitioners attempt to rely of section 54 will in my view be of little help in the instant circumstances. This is because the Petitioner never availed any document to support the argument that he was held for a period longer than the law provides. On one hand, we have the reports prepared under section 140 (2) (a) of the Act. On the other hand, the Petitioner presented nothing. The petitioner has failed to discharge the burden of prove to the required standard. All cases are decided on the legal burden of proof being discharged (or not). As Lord Brandon in Rhesa Shipping Co SA vs Edmunds10 stated: -10{1955} 1 WLR 948 at 955. “No Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take.”

18)Whoever desires any court to give judgement as to any legal right or liability, dependant on the existence of fact which he asserts, must prove that those facts exist. 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. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact. In civil cases the standard of proof is the balance of probabilities. In the case of Miller v Minister of Pensions,11Lord Denning said:-11{1947} 2ALL ER 372‘The …{standard of proof}…is well settled. It must carry a reasonable degree of probability...if the evidence is such that the tribunal can say: ‘We think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.’

19)A litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. The standard of proof, in essence can loosely be defined as the quantum of evidence that must be presented before a court before a fact can be said to exist or not exist. The legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. As Rajah JA in Britestone Pte Ltd v Smith & Associates Far East Ltd12 :-12{2007} 4 SLR (R} 855 at 59“The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”

20)A constitutional Petition is ordinarily determined by way of the pleadings filed because essentially its premised of legal issues. But where a Petitioner relies on contested issues of fact, then, in my view, it is always prudent to proceed by way of oral evidence so that the Petitioner can adduce evidence on the contested issues of fact and the testimony can be tested by way of cross-examination. From the material presented in this case, I find and hold that the Petitioner has not proved his case to required standard. Accordingly, I dismiss the Petition dated 15th January 2020 with no orders as to costs.

Orders accordingly. Right of appeal.DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 4TH DAY OF MARCH 2022. JOHN M. MATIVOJUDGE