https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9702

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CONSTITUTIONAL PETITION NO. 565 OF 2017** **IN THE MATTER OF: ARTICLES 19, 20, 21(1), 22(1), 23(1) & (3), 165(3)(a), (b), (d)(i), (ii) & 244(c) OF THE CONSTITUTION** **AND** **IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 26, 27(1), (2), 28, 29(a),(c),(d),(f), 49(1)** **BETWEEN** **PAUL MBURU NJAMA…….…………….…….…… PETITIONER** **VERSUS** **THE COUNTY GOVERNMENT OF** **THE CITY COUNCIL OF NAIROBI........................1ST RESPONDENT** **THE INSPECTOR GENERAL OF** **THE NATIONAL POLICE SERVICE……….…… 2ND RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTIONS... 3RD RESPONDENT** **THE HON. ATTORNEY GENERAL ...…………...… 4TH RESPONDENT** **JUDGMENT** **Introduction** 1. The Petition dated 9th November 2017 is supported by the Petitioner’s Affidavit in support of even date, Supplementary Affidavit dated 24th June 2019 and Further Affidavit dated 8th November 2021. 2. The Petition challenges the arrest, detention and prosecution of the Petitioner by the Respondents. 3. The Petitioner seeks the following reliefs: - 4. **A declaration that the assault, shooting, wounding and injuring of the Petitioner in the abdomen on 9/10/2013 by officers of the 1st and 2nd respondents was a threat to the fundamental right of the Petitioner to life which includes the right to a livelihood contrary to Article 26(1) and (3) of the Constitution.** 5. **A declaration that the assault, shooting, wounding and injuring of the Petitioner in the abdomen on 9/10/2013 by officers of the 1st and 2nd respondents was a violation of the fundamental right of the Petitioner to the security of the person including the freedom not to be subjected to any form of violence and freedom from cruel, unhuman and degrading treatment contrary to Article 29(c) and (f) of the Constitution.** 6. **A declaration that the arrest and detention of the Petitioner by officers of the 1st and 2nd Respondents for five (5) days between 9/10/2013 and 14/10/2013 without any reasonable or lawful justification and without giving the Petitioner any reasons thereof was a violation of the fundamental right of the Petitioner of the security of the person particularly the right not to be deprived of personal freedom arbitrarily or without just cause and a violation of the rights of the petitioner as an arrested person contrary to Articles 29(a) and 49(1)(a)(i) of the Constitution.** 7. **A declaration that the chaining of the Petitioner to the hospital bed at Kenyatta National Hospital ward for three (3) days between 11/10/2013 and 13/10/2013 without any reasonable or lawful justification whatsoever was a violation of the fundamental rights of the Petitioner to human dignity and to have that dignity respected, the fundamental right of the Petitioner to the security of the person particularly the rights not to be deprived of personal freedom arbitrarily or without just cause and the freedom from cruel, inhuman and degrading treatment contrary to Articles 28 and 29(a) and (f) of the Constitution.** 8. **A declaration that the prosecution of the Petitioner on pretended, fabricated, unfounded, trumped up and malicious charges before the Chief Magistrate’s Court at Nairobi, Milimani Law Courts, in Criminal Case No. 1639 of 2013 was a violation of the fundamental right of the Petitioner to equal protection and equal benefit of the law contrary to Articles 27(1) and (2) of the Constitution and was in the whole circumstances of the case an abuse of the criminal law, an abuse of the process of court and a malicious prosecution.** 9. **Special damages of Kshs. 398,005/-** 10. **An award of general damages as the court shall assess consequent to the declaration of violation of fundamental rights of the petitioner in prayers (a) and (e) above.** 11. **An award of exemplary, aggravated and/or vindicatory damages for blatant, callous, oppressive and highhanded violation of constitutional fundamental rights and freedoms of the Petitioner by officers of the Government.** 12. **Costs of the Petition.** 13. **Interest on all monetary awards.** 14. In opposition to the petition, the 1st Respondent filed a Reply to Petition dated 5th October 2018 and Supplementary Affidavit dated 8th February 2022 whereas the 3rd respondent filed a Replying Affidavit dated 24th July 2018. 15. The matter proceeded by viva voce evidence (live oral testimony). **The Petitioner’s Case** 1. The Petitioner is a male adult of sound mind and a Kenyan citizen is a resident of Mukuyu Estate, Murang’a town. He testified as PW1 began by adopting his witness statement dated 28th November 2018. He stated that at the material time, he was working as a conductor of motor vehicle registration number **KAR 236J Nissan Matatu** *plying route 23 to Westlands from Koja Mosque in Nairobi*. 2. On 9/10/2013 at about 9 am, they had parked their vehicle at their usual stage on Koja Lane when he decided to walk to a nearby hotel to take tea. Suddenly, he was confronted by two askaris of the 1st respondent who falsely accused him of spitting in the street. PW1 stated that he politely protested his innocence but the askaris informed him that they had to arrest him for the alleged spitting. 3. He then requested the two askaris to escort him back to the vehicle to remove face of the car radio because the driver was not in the car but they refused. The Petitioner’s colleagues who had seen what was happening ignited some commotion prompting the askaris to leave him alone but with a warning they would return soon. 4. After approximately twenty minutes, PW1 further testified that the askaris indeed returned in a pick-up truck owned by the 1st Respondent registration number of the 1st Respondent, **KAW 718Z**. The vehicle was full of askaris of the 1st Respondent, accompanied by some armed police officers. The askaris of the 1st respondent were led by the two who had previously accosted him PW 1. They grabbed PW 1 viciously beat him up and tossed him to the ground. As PW1 tried to get up and free himself from the violent attacks by the askaris, his abdomen was shot with a bullet he became numb with pain. The said askaris and the police officers shoved him into their pick-up truck and began patrolling the streets with him as he continued to bleed. 5. PW1 stated that the askaris arrested other people and took them to City Court but they left him lying flat in the pickup truck because wasn’t able to move. Afterwards they took him to Ngaira City Council Dispensary also known as Rhodes Clinic where one of the officers falsely told the nurse that his wound had been inflicted by a knife. However, the nurses disputed and insisted that the officers tell them the truth. That is when they admitted that it was a gunshot wound. The nurses washed his wound, dressed it up and put him on a drip before referring him to Kenyatta National Hospital where he was admitted as an emergency case, x-rayed, put on ultra sound examination and admitted to the theatre at about 4pm. After the surgery, he was admitted to the ward. 6. PW1 testified that on 11/10/2013 police officers from Central Police Station went to the ward, handcuffed him to the hospital bed. They informed him that they were doing that to ensure that he was not whisked away by the askaris of the 1st respondent. He further testified that he remained handcuffed to the bed guarded by two regular police officers until 13/10/2013 when he was discharged after paying his medical bill. Upon discharge from the hospital and without being given any reasons, he was placed under arrest and escorted by the police officers to Central Police Station where he recorded his statement of the events of 9/10/2013. He stated that he was further locked up at Central Police Station without being given any reasons or informed of any offence that he was suspected of having committed. 7. PW1 testified that on 14/10/2013 he was escorted to the Nairobi Chief Magistrate’s Court at Milimani Law Courts where he was arraigned in **Criminal Case No. 1639 of 2013** charged with three fabricated, trumped up and malicious charges of incitement to violence contrary to Section 96 of the Penal Code, wilfully obstructing a police officer contrary to section 254(b) of the Penal Code and assault causing bodily harm contrary to Section 251 of the Penal Code to which he entered a plea of not guilty to all counts and was granted bail. 8. The particulars of the charge on Count I of incitement to violence falsely alleged that *“on the 8th day of October 2013, at about 10.00am along Moi avenue in Nairobi within Nairobi County, jointly with others not before the court, without lawful excuse uttered words “Mwizi” which indicated that it was desirable to beat Peter Kamau Mwangi an act which was calculated to lead to the assault of Peter Kamau Mwangi.”* 9. The particulars of Count II provided that *“on the 8th day of October 2013 at about 10am along Moi Avenue in Nairobi within Nairobicounty jointly with others not before the court, wilfully obstructed No. 52893 PC Willand Chibuyi and No. 44797 PC Charles Osiri police officers who at the time of the said obstruction were acting in their due execution of their duties.”* 10. In respect of Count III, the particulars were that *“on the 8th day of October 2013, at about 10 am along Moi Avenue in Nairobi within Nairobi County jointly with others not before court, unlawfully assaulted Peter Kamau Mwangi thereby occasioning him actual bodily harm.* 11. PW 1 asserted that these trumped-up charges were preferred against him by the police to cover up for the offences committed against him and shield the violation of his rights by the askaris of the 1st respondent and regular police officers from 9/10/2013 to 13/10/2013 and to frustrate the investigation of the askaris and the police officers involved. PW 1 further testified that the 3rd respondent continued to prosecute him on all the said charges as drawn until **1/9/2015** when the charge sheet was amended to read the date of the alleged offences as 9/10/2013 instead of 8/10/2013. 12. The witness testified that after hearing all the witnesses of the prosecution on 16/9/2016, the trial court delivered its ruling and **acquitted him under Section 210 of the Criminal Procedure Code** on counts I and II but placed him on his defence on count III. After giving his defence on the said count and calling his driver Cyrus Mutunga Mbahoni as his witness, on 10/11/2016 the trial court acquitted him under Section 215 of the Criminal Procedure Code for lack of proof beyond reasonable doubt. 13. PW 1 testified that his arrest, police detention for five days and prosecution was totally unlawful, unjustified, malicious, callous, and wanton abuse of public power and the law. That it was deliberately intended and designed to harass, intimidate, suppress and silence him from pursuing justice for the crimes of assault, unlawful shooting and wounding committed against him by the law enforcement agents. 14. PW1 testified that to date he is not aware of any legal action taken by the police against the askaris of the 1st respondent and the police officers who assaulted and shot him and he has never been called as a witness against the said officers. As a consequence of being unlawfully assaulted, shot and wounded, he was hospitalized and continues to attend clinics. He incurred Kshs. 38,005/- in medical expenses. He further procured legal services of an advocate to the tune of Kshs. 350,000/-. He lost his job as a matatu conductor was the only means of sustaining himself in Nairobi and was thus compelled to relocate to his rural home in the county of Murang’a in the beginning of June 2015. Furthermore, the witness testified that he used to commute from Murang’a to Nairobi to attend his case when it came up for mention and hearing whereby, he incurred Kshs. 10,000/- as travelling and upkeep expenses. The witness testified that for the three years that the Criminal Case No. 1639 of 2013 was pending trial and determination in court, he lived with the embarrassing label of being a criminal suspect and an accused person. **The 1st Respondent’s Case.** 1. DW1, **Kipsang Kosgei**, adopted his witness statement dated 5th November 2018. He testified that he is the Director of City Inspectorate under the Nairobi City County. DW1 testified that according to the 1st Respondent’s by laws and regulations, the officers of the 1st Respondent are not authorized to carry any ammunition thus, the allegations against their officers are misplaced and untrue. The witness further testified that the petitioner did not specifically name the said officers who allegedly shot him but only referred to them as county askaris. 2. DW1 asserted that the petitioner failed to demonstrate any violations of the law and human rights committed by the county askaris against him and therefore his petition has no tangible cause of action against the 1st Respondent. The witness further stated that the 1st Respondent only deals with matters stipulated in the county by laws and which have no provisions for Penal Code offences which fall under the category of the offences alleged by the Petitioner and thus the Petitioner’s claim should be directed towards the 2nd Respondent. **The 3rd Respondent’s Case** 1. The 3rd Respondent filed and relied on affidavit evidence; it did not call any witness. Prosecution Counsel for the 3rd respondent revealed that the decision to charge the Petitioner (PW1) was made by the 3rd respondent upon submission of the investigation file by the 2nd respondent after which charges were preferred against him in Milimani Criminal Case No. 1639 of 2013. The 3rd Respondent stated that the Petitioner (PW 1) was charged with the offences of incitement to violence contrary to section 96 of the Penal Code, wilfully obstructing a police officer contrary to Section 254(b) of the Penal Code and assault after a review of the investigation file was done and found that there was sufficient evidence to have him prosecuted. 2. The 3rd Respondent deponed that the prosecution was instituted with reasonable and probable cause and was not actuated by any malice as the facts were independently reviewed and based on the evidence, the decision to charge was made. The 3rd Respondent contended that the fact that the Petitioner (PW 1) was placed on his defence by the trial court is an indication that the prosecution had a prima facie case that had a realistic prospect of conviction and vindicates the prosecution’s decision to charge the Petitioner. 3. The 3rd Respondent averred that the fact that a case beyond reasonable doubt was not proved against the petitioner is not an indicator that there was no case against him. Further, there was no malice in the Petitioner’s prosecution since due process was observed and the petitioner accorded all the fair trial processes. The 3rd Respondent averred that under Article 157 of the Constitution, the DPP does not require the consent of any person or authority to commence criminal proceedings against any person. Further in exercise of its powers or functions, the DPP shall not be under the direction of any person or authority. **Petitioner’s Submissions** 1. The Petitioner submitted that the 2nd respondent did not file any response and thus his claims against the 2nd respondent are wholly undefended. The petitioner argued that although the 3rd respondent filed a replying affidavit, the deponent did not testify before court and therefore there is no sustainable defence on his claim against the 3rd respondent. Reliance was placed in the case of **Mary Njeri Murigi vs Peter Macharia & Another [2016] eKLR** where the court held:- ***I am in total agreement with the decision by my learned brother Judge G.V. Odunga J. in Linus Nganga Kiongo & 3 Others vs Town Council of Kikuyu [2012] eKLR on the consequences of a party failing to call evidence wherein he stated:……Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in doing so the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged……*** 1. I am in agreement with the above persuasive exposition that indeed, it is not sufficient for a party and more specifically the defendants in this case to have made strong statements of defence on paper. Their defence remains mere allegations not proved by evidence as required under Sections 107 and 108 of the Evidence Act. In addition, pleadings, answers in cross examination and or submissions do not amount to evidence or defence. It therefore follows that however well choreographed the submissions are and however serious the cross examination was and however fervent and vehement the statement of defence is, are not evidence. 2. Similar reliance was placed in the case of **Kimani & Another (Suing as the legal representatives of the Estate of the late Jacob Kimani Kamande (Deceased) vs Macharia [2023] KEHC 1701 (KLR)**. 3. The Petitioner further argued that the 4th Respondent although represented in the course of the proceedings never filed a response to the petition. Thus, the 2nd, 3rd and 4th respondents who by Article 156(4) of the Constitution should be represented by the 4th respondent, did not defend the Petition. 4. The Petitioner identified five issues of determination as whether the Petition is properly before the court; whether the 1st Respondent is liable in this petition; whether the petitioner has proved his case to the required standard; is the petitioner entitled to damages and what is the quantum thereof and who should bear the costs of the petition. 5. On the first issue, the Petitioner submitted that although the 1st Respondent argued that he ought to have exhausted alternative dispute resolution mechanisms before approaching the instant court, the 1st respondent did not disclose the particular alternative dispute resolution mechanism that he ought to have exhausted. The Petitioner argued that the petition is properly before the court and the violations pleaded fall squarely within the jurisdiction of the court under Articles 22(1), 23 and 165(3)(a),(b),(d)(i),(ii) of the Constitution. 6. The Petitioner submitted that the evidence on record reveals that he was initially unlawfully assaulted and subjected to violence by officers of the 1st Respondent and his unlawful arrest was orchestrated by officers of the 1st Respondent and carried out by a combined squad of officers of the 1st and 2nd Respondents. He further narrated how officers of the 1st and 2nd Respondents unleashed brutal violence on him while he was unarmed. The Petitioner further argued that his evidence in the criminal trial was corroborated by his driver DW2 and PW2 PC Charles Osiri who stated that he realized that one person was injured as he was engaged in a brawl with the city council officers. The Petitioner cited Articles 26 and 29 of the Constitution and submitted that the 1st Respondent’s officers are liable for the unlawful violence, assault and unlawful arrest and deprivation of personal liberty. 7. The Petitioner asserted that the assault, shooting, wounding and injuring in his abdomen by the officers of the 1st and 2nd Respondents are a threat to his fundamental right to life which includes the right to a livelihood, a violation of his fundamental right to the security of the person including the freedom from any form of violence and freedom from cruel, unhuman and degrading treatment contrary to Articles 26(1),(3) and 29(c) and (f) of the Constitution. As a consequence of the violence and injuries inflicted on him, he was taken for medical attention by the same officers and ultimately admitted at KNH. The Petitioner asserted that he produced his medical records including a medical report from KNH which shows that he had *a gunshot wound on the lower abdomen* and that surgery was conducted on him and from the wound *a plastic shell and 6 rubber bullets were retrieved*. Furthermore, it was conceded by the officers of the 1st and 2nd Respondents that he was shot by police officer **PW2 PC Charles Osiri**. PW3 Willard Chibui on cross examination explicitly stated that he was shot by PC Charles Osiri and PW5, Cpl Elias Kiptum, the investigating officer on cross examination testified that PC Charles Osiri shot the Petitioner as he was the only one who had a rubber bullet gun. 8. The Petitioner argued that no legal justification was given during the criminal trial and in the instant court as to why he was shot. Instead before the subordinate court, officers of the 1st and 2nd respondents concocted the allegations that he was shot as he assaulted PW1 while resisting arrest. The learned magistrate saw through the falsehoods and rejected the same in the judgment. 9. The petitioner referred to the case of **Charles Munyeki Kimiti vs Joel Mwenda & 3 Others [2010] eKLR** where the Court of Appeal held as follows on the legal limits of the use of force by law enforcement agents:- ***We are aware, however that Section 21 of the Criminal Procedure Code all was the police or a private person who endeavours to arrest a person suspected of having committed a crime to use all means necessary to effect arrest where arrest is forcibly resisted. However, Section 22(3) of the CPC forbids the use of unreasonable force in effecting arrest in the following terms: “Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.” Whether or not police have used excessive force in effecting arrest is a matter of degree dependent on the peculiar circumstances of each case….The law only allows the police to use all means necessary to effect arrest and even then, they are not allowed to use greater force than reasonable or necessary in the particular circumstances.*** 1. The petitioner revealed that the case of **Charles Munyeki Kimiti vs Joel Mwenda & 3 Others** (supra) was decided on 5th March 2010 before the promulgation of the 2010 Constitution and the enactment of the National Police Service Act 2011. By virtue of **Article 29(c) of the Constitution**, the NPSA aligned itself to the nonviolent ideal under the article. **Section 61 of the Act** explicitly provides that the police service shall be nonviolent in execution of its duties and may use force or firearms only as a regulated last resort. It provides: - **(1) Subject to subsection (2), a police officer shall perform the functions and exercise the powers conferred by the Constitution and this Act by use of non-violent means.** **(2) Despite subsection (1), a police officer may use force and firearms in accordance with the rules on the use of force and firearms contained in the Sixth Schedule.** 1. The conditions as to the use of force in the Sixth Schedule provide thus: **(1) A police officer shall always attempt to use non violent means first and force may only be employed when non violent means are ineffective o without any promise of achieving the intended result.** **(2) The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.** **(3) When the use of force results in injuries-** **(a) the police officers present shall provide medical assistance immediately and unless there are good reasons, failing to do so shall be a criminal offence; and** **(b) shall notify relatives or close friends of the injured or affected persons.** **(4) A police officer who uses any form of force shall immediately report to the officer’s superior explaining the circumstances that necessitated the use of force and the supervisor shall judge the rightfulness and decide the next step, subject to these regulations.** **(5) Any use of force that leads to death, serious injury and other grave consequences shall be reported immediately by the officer in charge or another director superior of the person who caused the death or injury, to the Independent Police Oversight authority who shall investigate the case.** 1. Further, the conditions as to the use of firearms in part B of the Sixth Schedule of the NPSA are stringent on when firearms may be used by police officers as follows:- **(1) Firearms may only be used when less extreme means are inadequate and for the following purposes-** **(a) saving or protecting the life of the officer or other person; and** **(b) in self defence or in defence of other person against imminent threat of life or serious injury.** **(2) An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed except-** **(a) where doing so would place the officer or the other person at risk of death or serious harm; or** **(b) it would be clearly inappropriate or pointless in the circumstances.** **(3) Any use of firearm, even if there is no injury, shall immediately be reported to the officer’s superior.** **(4)** **Any use of firearms that leads to death, serious injury and other grave consequences shall be reported by the officer in charge or another direct supervisor of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.** 1. The Petitioner submitted that he narrated how the officers of the 1st and 2nd respondents intentionally unleashed brutal violence on him while he was unarmed. The violence was premeditated as the first batch of officers of the 1st respondent first went away only to return reinforced by officers of the 2nd respondent who shot him. Further the concocted stories by PW1 Peter Kamau Mwangi and PW4 Robert Asing’a at the criminal trial that PW1 had been attacked by him who he had arrested for hawking were dismissed by the trial magistrate as utterly false. *Additionally, the record of the criminal trial is also explicit that no report was made to the immediate superiors on the use of firearms as required by the Sixth schedule of the NPSA.* Thus, the Petitioner submitted that his right to life under Article 26(1) and (3) of the Constitution was threatened by the violence and the shooting inflicted on him and his fundamental right to freedom from violence under Article 29(c) was wantonly and recklessly violated without any justification. Further, his right to life was further violated by the consequence of his loss of ability to work and earn a livelihood as he nursed injuries inflicted on him. 2. The petitioner asserted that he presented unchallenged evidence before the learned magistrate in the criminal case and the instant court that while he was admitted in the ward at KNH, on 11th October 2013, police officers paid him a visit, handcuffed him and placed him under their guard during the day ostensibly to stop officers of the 1st respondent from taking him away. The said evidence of him being handcuffed in the ward as corroborated by DW2 on cross examination. The Petitioner cited Articles 28 and 29 of the Constitution and argued that handcuffing of a suspect must be justified under the law. Furthermore Article 51 of the Constitution preserves all fundamental rights and freedoms of detained persons, those held in custody or imprisoned except those rights and freedoms that are inconsistent with the fact of lawful detention. Part D of the Sixth Schedule of the NPSA on preventing escape prescribe circumstances that justify mechanical restraint by handcuffs. **(1) A police officer may use instruments of restraint to prevent the escape of a detainee or prisoner-** **(a) to prevent escape of a detainee; and** **(b) to prevent the detainee from self** **injury or injuring others or damaging property** **(2) An instrument of restraint may-** **(a) not be applied for longer than necessary to secure the purpose for which it is used;** **(b) not as a punishment; and** **(c) Shall be removed immediately after the purpose for which it is used is achieved.** 1. **Section 24 of the Criminal Procedure Code** prohibits the use of unnecessary restraint on an arrested person. 2. The petitioner argued that the 2nd respondent has not given reasons for handcuffing him in the hospital ward for 3 days. Further, there cannot be any legally acceptable reason for handcuffing him in a hospital bed as a post surgery patient. Reliance was placed in the case of **Citizens for Democracy vs State of Assam & Others, Writ Petition (C) No. 22 of 1995**, where perceived high risk prisoners were handcuffed in a hospital ward, the Supreme Court of India reiterated its earlier decisions that the handcuffing of the prisoners violated their fundamental rights and freedoms to equality before the law, freedom and right to life, thus: ***This Court in Shukla’s case categorically held that handcuffing is prima facie inhuman, unreasonable, arbitrary and as such repugnant to article 21 of the Constitution of India….This Court in Shukla’s case speaking through Krishna Iyer J. laid down the law as under: Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer..Since there are other ways of ensuring security, it can be laid down as rule that handcuffs or other fetters shall not be forced on the person of an undertrial prisoner ordinarily….We lay down as necessarily implicit in Arts 14 and 19 that when there is no compulsive need to fetter a person’s limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Art 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 (see Sunil Batra, supra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe keeping…But even here, the policeman’s easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible as not unreasonable only if every other less cruel means is fraught with risks beyond availability. So it is that to be consistent with arts. 14 and 19 handcuffs must be the last refuge not the routine regimen. If a few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If the alternative measures may be provided, then no iron bondage. This is the legal norm…We have elaborately narrated the facts of the present case. We are of the view that there is no basis whatsoever for drawing an inference that the seven detenues who were lodged inside the ward of the hospital were likely to escape*** ***from custody. The antecedents of the detenues are not known. There is nothing on the record to show that they are prone to violence. General averments that the detenues are hardcore activists of ULFA and that they are accused on terrorists and disruptive activities, murder, extortion, holding and smuggling of arms and ammunitions are not sufficient to place them under fetters and ropes while lodged in a closed ward of the hospital as patients. Security guards were posted outside the ward. It is not disputed that while in jail the detenues were not handcuffed. They cannot be in a worst condition while in hospital under treatment as patients. In any case to safe guard any attempt to escape, extra armed guards can be deployed around the ward of the hospital where the detenues are lodged. The handcuffing and in addition tying with ropes of the patient prisoners who are lodged in the hospital is, the least we can say, unhuman and in utter violation of the human rights guaranteed to an individual under the international law and the law of the land. We are therefore, of the view that the action of the respondents was wholly unjustified and against the law.*** 1. The Petitioner argued that he was arrested on 9th October 2013 without being given any reasons and remained in custody for five days until 14th October 2013 when charges were preferred against him and he was arraigned. The Petitioner submitted that he had not committed any offence at the time of his arrest and thus his arrest was arbitrary *ab initio*. The Petitioner argued that the burden of proof on deprivation of liberty is on the respondents as was succinctly articulated by the South African Constitutional Court in **Zealand vs Minister for Justice and Constitutional Development & Another (CCT 54/07) [2008] ZACC 3**:- ***There is another, more important reason why this court should rule in the applicant’s favour. The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily or without just cause, as well as the founding value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead that he unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of liberty, whatever form it may have taken. This is not something new in our law. It has long been firmly established in our common law that every interference with physical liberty is prima facie unlawful. Thus, once the claimant establishes that an interference has occurred, the burden falls upon the person causing that interference to establish a ground of justification.*** 1. The Petitioner argued that since the respondents’ purported justification for his arrest and detention was the criminal case that concluded in his favour with the trial magistrate explicitly finding that he had not committed any offence, the respondents were left without any justification for his arrest and detention. Further, the Petitioner argued that Article 49 of the Constitution is explicit that an arrested person has the right to be informed promptly, in a language that he understands the reason for his arrest. The right is amplified by the **Arrest and Detention Rules in the Sixth Schedule of the NPSA. Rules 1 and 2** provide:- **(1) In the performance of the functions and exercise of the powers of arrest and detentions set out in the Constitution and this Act or any other law, a police officer shall carry out an arrest and detention only as provided for in law.** **(2) A police officer shall accord an arrested or detained person all the rights set out under Articles 49, 50 and 51 of the Constitution.** 1. The Petitioner reveals that after the first encounter with the officers of the 1st Respondent when he was accused of spitting but on the second encounter he was pounced upon with blows and was not accused or informed of committing any offence. He was not charged with the offence of spitting on the street and none of the prosecution witnesses stated that they told him the reasons for his arrest. 2. The Petitioner submitted that the prosecution in Criminal Case No. 1639 of 2013 on trumped up charges violated his fundamental right to equal protection and equal benefit of the law contrary to Article 27(1) and (2) of the Constitution. The Petitioner further argued that the 3rd respondent did not testify but only filed a replying affidavit and therefore his replying affidavit remains mere statements. The Petitioner urged the court to consider the averments in the said affidavit as hearsay as the averments were not facts of the prosecution counsel’s own knowledge but rather as duly briefed of the matter and authorised to swear the affidavit on behalf of the 3rd respondent. Furthermore, the said prosecution counsel Jalson Makori, was not the counsel who prosecuted him at any point. The Petitioner argued that the state counsel who actually perused and reviewed the police investigations file, if at all, before he was arraigned was the proper officer to swear the replying affidavit. It is trite law that the veracity of an affidavit depends on its source. The petitioner cited the case of **Republic vs Otieno Kajwang & Another *ex parte* Mohamud Muhumed Sirat [2009] eKLR** which held:- ***The rule of hearsay applies to evidence as well as documents. An affidavit is evidence and, its weight goes according to its source. The affidavit sworn by a person who did not take the actions complained of have little if any weight at all.*** 1. The Petitioner argued that the mere assertion that the charges against him were preferred pursuant to the advice of the 3rd respondent is not of itself a sufficient defence to a claim of malicious prosecution. Reliance was placed in the case of **Lucas Omoto Wamari vs Attorney General & Another [2017] eKLR**, the Court of Appeal held:- ***In Kagane vs the Hon. Attorney General [1969] EA 643 it was held that….(ii) the fact that prosecution was instituted on the advice of State Counsel did not of itself constitute reasonable and probable cause.*** 1. The Petitioner asserted that the respondents did not discharge the burden on them of leading admissible evidence to justify prosecuting him. Reliance was placed in the case of **Republic vs Director of CID & Another *ex parte* Ronald Morara Ngisa [2018] eKLR** where Odunga J. (as he then was) held:- ***It follows that the burden is on the prosecutor to show by way of admissible evidence that he is in possession of material that disclose the existence of a prosecutable case since as was held in Stanley Munga Githunguri vs R [1986] eKLR at page 18 and 19….’A prosecution is not to be made good by what it turns up. It is good or bad when it starts…As was appreciated in R vs Attorney General exp Kipngeno arap Ngeny High Court Civil Application No. 406 of 2001: …It is an abuse of the process of the court to mount a criminal prosecution for extraneous purposes.*** 1. On the issue of the prayer for malicious prosecution, the Petitioner referred to the case of **Jaston Ongule Onyango vs Attorney General & Another [2015] eKLR**, where Mumbi Ngugi J. (as she then was) relying a previous decision of **C.O.M vs Standard Group & Another High Court Petition No. 192 of 2011**, dismissed an objection to a claim for malicious prosecution in a constitutional petition, held:- ***I agree with the Learned Judge on this point. The present petition raises both constitutional claims and also the civil claims for malicious prosecution which falls for determination under the civil jurisdiction of the High court. It would not serve the interest of justice, however, were this Court at this stage to determine that it cannot deal with the question of whether or not the petitioner has established his claim against the state for malicious prosecution. In the circumstances, it is my finding that the matter is properly before me and I will now proceed to determine the question whether the petitioner has established his claim.*** 1. The Petitioner further argued that a prayer for malicious prosecution is not misplaced in a constitutional petition since it traces its roots to the violated fundamental rights. This court held that a petition combining claims of constitutional rights and malicious prosecution is a hybrid petition that seeks enforcement of a constitutional tort. Reliance was placed in the case of **Kimunai Ole Kimeiwa & 5 Others vs Joseph Motari Mosigisi (The then District Commissioner, Rongai District) & 3 Others [2019] eKLR** where the court held:- ***However, looking at the pleadings, the substance of the suit can only be called a constitutional tort. Almost always a suit for malicious prosecution involves some allegation of deprivation of liberty as guaranteed in the Bill of Rights. This, then, implicates the concept of a constitutional tort in cases such as this one. As Prof Michael Weels explains, the prime objective of a constitutional tort is to protect a broad range of common law interests encompassed within the Bill of Rights’ liberty interests in circumstances where the official’s conduct is fairly characterized as an abuse of power. Consequently, I find a suit for malicious prosecution which implicates deprivation of liberty and diminution of dignity of petitioners to be a constitutional tort.*** 1. Similar reliance was placed in the Court of Appeal case of **Lucas Omoto Wamari vs Attorney General & Another (supra)** where the court found liability for combined claims of violation of fundamental rights and malicious prosecution and awarded damages without any whiff of doubt on the propriety of such hybrid claims in the petition appealed from, holding thus:- ***On the issue of damages for malicious prosecution, this is a claim in tort. The tort was committed after the constitutional violations. It is therefore appropriate that a separate and specific award be made.*** 1. The Petitioner argued that the claim for malicious prosecution is not founded merely on his acquittal but on the explicit findings of the learned magistrate that he had not committed any offence and his prosecution was for the sole purpose of covering up for his unlawful assault, shooting, arrest and detention. The Petitioner further argued that from the findings of the learned magistrate, all the charges in the criminal case against him were dishonest, fabricated, unjustified and malicious. Reliance was placed on the case of **Republic vs Director of CID & Another *ex parte* Ronald Morara Ngisa (supra)**where it was held:- ***In exercising their discretion to charge a person both the police and the DPP’s office must take into account and must exercise the discretion on the evidence on sound legal principles. As was held by Ojwang J. (as he then was) in Nairobi HCCC No. 1729 of 2001 Thomas Mboya Oluoch & Another vs Lucy Muthoni Stephen & Another: ….policemen and prosecutors who fail to act in good faith, or are led by pettiness, chicanery or malice in initiating prosecution and in seeking conviction against the individual cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense…I do not expect that any reasonable police officer or prosecution officer would lay charges against anyone, on the basis of evidence so questionable and so obviously crated to be self serving. To deploy the state’s prosecutorial machinery, and to engage the judicial process with this kind of litigation, is to annex the public legal services for malicious purposes…It is trite that based on R vs Attorney General exp Kipngeno arap Ngeny (supra)..A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable.*** 1. Similar reliance was placed in the case of **Chitembwe vs Ethics and Anti-Corruption Commission & Another [2024] KEHC 11192 (KLR)** where the court held:- ***It is also trite that to prosecute a person is not prima facie tortuous but to do so dishonestly and unreasonable is tortuous as held in Kagane vs Attorney General EA 643 which set the test for reasonable and probable cause. In malicious prosecutions circumstances surrounding the prosecution is key. The prosecution agencies are required to investigate the complaint and act impartially and independently be thorough taking into account versions presented by both the complainant and the suspect.*** 1. On the elements that constitute malicious prosecution, the petitioner relied on the case of **Jaston Onyango Ongule vs Attorney General & another [2015] eKLR** where Mumbi Ngugi J. (as she then was) reiterated:- ***In his decision in Homa Bay High Court Civil Appeal No. 17 of 2014-Music Copyright Society of Kenya vs Tom Odhiambo Ogowi, Majanja J. observed that the elements that needed to be proved in a case of malicious prosecution had been stated in several cases, inter alia the case of Kagane & Others vs Attorney General & Another [1969] EALR 643 Katerrega vs Attorney General [1973] EALR 287, Mbowa vs East Mengo District Administration [1972] EA 352, Murunga vs Attorney General [1979] KLR 138. He set out these elements as being: (a) The plaintiff must show that prosecution was instituted by the defendant, or by someone for whose acts he is responsible. (b) that the prosecution terminated in the plaintiff’s favour. (c) that the prosecution was instituted without reasonable and probable cause. (d) that the prosecution was actuated by malice. The Learned Judge went on to observe that in the case of Mbowa vs East Mengo District Administration [supra] the East African Court of Appeal had stated that in order to succeed, the plaintiff has to prove that the four essentials or requirements of malicious prosecution set out above have been fulfilled, and that he has suffered damage as a result. In view of the Court….the four requirements must unite in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action.*** 1. The Petitioner argued that his prosecution was initiated and executed by the 2nd and 3rd respondents and that the criminal trial was terminated in his favour. On the element of whether the prosecution was based on reasonable and probable cause or was actuated by malice, the petitioner argued that the learned trial magistrate found as a fact that the prosecution was intended as a cover up for the unprovoked, unwarranted, unlawful assault and shooting by the officers of the 1st and 2nd respondents and was outrightly malicious. Reliance was placed in the case of Emmanuel **Kuria wa Gathoni vs Commissioner of Police & Another [2017] eKLR** where the court held:- ***The defendant must have acted without reasonable or probable cause i.e there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified. The defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than, its legally appointed and appropriate purpose…The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words the police or any other prosecution arm of the government is not a mere conduit for complaints. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect…Where the police deliberately decide not to take into account the version of the suspect and acts on a story that eventually turn out to be improbable and which no ordinary prudent and cautious man would have relied upon that failure may constitute lack of reasonable and probable cause for the purpose of malicious prosecution…But neglect to make a reasonable use of the sources of information available before instituting proceedings would be evidence of want of reasonable and probable cause and also malice.*** 1. Similar reliance was placed in the case of **Jaston Onyango Ongule vs Attorney General & Another (supra)** where the court held:- ***In the words of Lord Atkins in Herniman vs Smith HL 1938 AC 305: I should define reasonable and probable cause to be 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 any 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.*** 1. The Petitioner asserted that the Court of Appeal in the case of **Lucas Omoto Wamari vs Attorney General & Another (supra)** held that dishonest prosecutions intended as cover ups for violations of rights are plainly malicious. It stated:- ***As intimated by the trial Judge, the decision to charge the appellant with the capital offences of robbery with violence was not motivated by a desire to vindicate justice, but a desire to cover up the violation of the appellant’s constitutional rights. In coming to the conclusion that there was no actual malice in the prosecution of the appellant, the trial judge ignored his earlier finding that the charge against the appellant was motivated by an ulterior motive which was to cover up the appellant’s unlawful detention…With respect, the trial judge erred in finding there was no aminus malus. The evidence, not only established the absence of reasonable and probable cause, but showed the absence of honesty and a deliberate attempt by the police to fix the appellant by introducing the capital charges, this was clear malice…*** 1. Further in **Jeremiah ole Dashi Pallangyo vs Attorney General & 4 Others [2021] eKLR**, the court held that malice is either direct or inferred:- ***Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution…and as was held in JP Macharia vs Wangethi Mwangi and Nation Newspapers Civil Appeal No. 179 of 1997 malice can be inferred from a deliberate or even negligently ignoring of facts.*** 1. The Petitioner cited **Article 23 of the Constitution** and the case of **Lucas Omoto Wamari vs Attorney General & Another (supra)** and argued that the court is empowered to grant damages to him for violations of fundamental rights pursuant to declarations in his favour. The Court held:- ***The question that arises is whether the trial judge awarded any damages in regard to these violations. In his prayers in the plaint the appellant not only prayed for declarations but at prayer (vi) & (vii) specifically prayed for general damages for violations of his fundamental rights and freedoms. Mere declarations without any specific award of damages do not vindicate the appellant neither do they convey a deterrent message regarding the sanctity of the Constitution and the need for protection of fundamental rights and freedoms. Therefore, the omission to make a specific award for these violations was an error that justifies the intervention of this court.*** 1. Similarly, reliance was placed in the case of **Imanyara & 2 Others vs Attorney General [2022] KESC 78 KLR** where the Supreme Court held:- ***In the Indian case of Radul Shah vs State of Bihar & another [1983] 4SS 141, the Supreme Court of India held that: One of the telling ways in which the violations of the right to life and liberty can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which*** ***present for their protection the powers of the state as a shield. Respect for the rights of individuals is the true bastion of democracy. Therefore, the state must repair the damage done by its officers to their rights…therefore refusal to pass an order for compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the state government has grossly violated. Also in the case of Mamedova vs Russia (Application No. 7064/05), the European Court found……In the circumstances, the court considers that the applicants suffering and frustration cannot be compensated for by a mere finding of violation…*** 1. Further reliance was placed in the case of **Wamwere & 5 Others vs Attorney General [2023] KESC 2(KLR)** where the Supreme Court found:- ***Though the appellants did not lead any evidence of the loss they may have suffered due to the violation of their right and freedom from inhuman treatment, it is important for the court to vindicate and affirm the importance of the violated rights. The foregoing rationale is buttressed by the reasoning of the Supreme Court of Canada in City of Vancouver vs Ward [2010] 2 SCR 28. In that matter, the court held that damages may be awarded if at least one of the three objects is served: individual compensation; vindication, in the sense of addressing harm to society as a whole and deterrence, in the sense of influencing government behaviour in order to secure state compliance with the charger in the future which would promote good governance. At para 30 the court*** ***recognized that the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award.*** 1. The Petitioner submitted that the Supreme Court in **Imanyara & 2 Others vs Attorney General (supra)** pronounced guiding principles on assessment of general damages for violation of fundamental rights as follows:- ***The duration of the claimant’s detention; the level of physical and mental suffering endured by the claimant; the degree of responsibility of the individual(s) responsible for the suffering caused to the claimant; the extend of the action or inaction complained of and any other incidental rights that may have been violated as a consequence of the first breach(es); award is discretionary and will depend on the facts and circumstances of each case and award is not compensatory or punitive but a vindication of the violated rights.*** 1. The Petitioner proposed an award of Kshs. 5 million in general damages for the declarations of violations of fundamental rights and freedoms in prayers (a) to (d) and (f) and Kshs. 2,500,000/- for malicious prosecution totalling to Kshs. 7,500,000. The Petitioner relied on the cases of **Jaston Ongule Onyango vs Attorney General & Another (supra)** where the court awarded the Petitioner a global sum of Kshs. 4 million for violation of his right to privacy and malicious prosecution. In **Anthony Murimi Waigwe vs Attorney General & 4 Others [2020] eKLR**, the Petitioner was awarded Kshs. 4,500,000/- for violation of his constitutional rights and Kshs. 500,000/- in punitive damages. In **Emmanuel Kuria wa Gathoni vs Commissioner of Police & Another (supra)** the Plaintiff was awarded general damages for Kshs. 5 million for malicious prosecution and aggravated damages of Kshs. 2 million. In **Stephen Ayugi vs National Housing Corporation & 4 Others [2019] eKLR** the court granted the claimant Kshs. 3,500,000/- for damages for malicious prosecution. In **Simiyu vs Attorney General of Kenya & 3 Others [2024] KEHC 16374 (KLR)** the court granted a similar amount of Kshs. 3,500,000/- for malicious prosecution and in **Mokoit vs Defence Council & Another [2025] KEHC 3545 (KLR)** the petitioner was awarded Kshs. 3 million for violation of his fundamental rights. 2. On the issue of exemplary, aggravated and punitive damages, the Petitioner submitted that the officers of government manipulated their power and the law after violating his rights and freedoms and ultimately victimized him with fabricated offences calculated to confer them with the benefit of impunity. The petitioner relied on the case of **Kenya Power & Lighting Company vs James Njuguna Mwaniki [2022] eKLR** which articulated the principles upon which exemplary damages are awardable and held:- ***In the case of Godrey Julius Ndumba Mbogori & another vs Nairobi City Council [2018] eKLR, the court set out the categories of cases in which exemplary damages may be awarded, as follows- (i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the government…In my understanding, the categories cited in that case are not exclusive. Exemplary damages may be awarded when the court has determined that the defendant needs to be punished. In the case of Abdul Hamid Ebrahim Ahmed vs Municipal Council of Mombasa HCCC No. 290 of 2000, the court explained that:- the reason why exemplary damages ae awarded mainly against the government or bodies exercising functions of a governmental character is because servants of the government are also servants of the people and the use of their power must always be subordinate to their duty.*** 1. Further reliance was placed in **P.N. Mahru Ltd vs Duncan Ouma Ojenge (2023) KECA 473** where the Court of Appeal held that exemplary or punitive damages are awardable for conduct ulterior to achieving the course of justice. 2. On the award of punitive damages, in **Bank of Baroda (Kenya) Limited vs Timwood Products Ltd Civil Appeal No. 132 of 2001**, this court citing **Obongo & Another vs Municipal Council of Kisumu [1971] EA 91** and **Rookes vs Barnard & Others [1964] AC 1129** held that in Kenya punitive or exemplary damages are awardable only under two circumstances, namely (i) where there is oppressive, arbitrary or unconstitutional action by the servants of the government; and (ii) where the defendant’s action was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. The third scenario of course, where such damages are authorized by statute…It is clear that the benefit contemplated in award of punitive damages must not necessarily be financial. In this case, we must ask ourselves what the appellant intended to achieve by resorting to the unorthodox method of investigation by engaging the services of a witchdoctor. Such unconventional and unlawful action must have been intended to achieve more than just vindicate a course of justice…Accordingly, we find no reason to interfere with the finding that the respondent was entitled to punitive damages. 3. The Petitioner argued that a finding of liability for malicious prosecution has traditionally attracted exemplary or punitive damages since it is prima facie a finding of deployment of the criminal law for ulterior motive. Reliance was placed in the case of **Emmanuel Kuria wa Gathoni vs Commissioner of Police & Another (supra)** where the court held:- ***Damages under this head are awarded where the defendant may have acted with malevolence or spite or behaved in a high handed, malicious, insulting or aggressive manner. In awarding damages under this head, the court may consider the defendant’s conduct up to the conclusion of the trial including what his or her counsel may have said at the trial. This court finds that the plaintiff is entitled to aggravated damages taking into account the defendant’s insistence on proceeding with the case when there was no sufficient evidence to sustain the trial.*** 1. The Petitioner proposed a sum of Kshs. 2 million on the award of exemplary, aggravated and punitive damages. He made reference to the cases of **Emmanuel Kuria wa Gathoni vs Commissioner of General Police & Another (supra)** and **Muslims for Human Rights & another vs Inspector General of Police & 2 Others [2024] eKLR** where the court awarded Kshs. 2 million and Kshs. 1,500,000/- as punitive and exemplary damages respectively. **The 1st Respondent’s Submissions** 1. The 1st respondent identified three issues for determination as whether the 1st Respondent was liable to be sued in this matter; whether there was a contract between the claimant and the Respondent and what nature was the contract and whether the claimant is entitled to the reliefs sought. 2. The 1st Respondent submitted that it is not liable to be sued in the instant matter as its officers are not entitled to operate with live ammunition and further the facts of the offence as claimed by the petitioner lay inference that the 2nd respondent is responsible for shooting the Petitioner. the 1st Respondent further submitted that during the hearing, it became clear that the petitioner was detained in the 2nd respondent’s custody for a penal offence and that the 1st respondent’s duties and obligations deal with the city county by laws whose officers are only allowed to carry rungus thus disputing the petitioner’s allegation that he was shot by county askaris. 3. The 1st respondent cited Section 107, 108 and 109 of the Evidence Act and submitted that it should not be held liable for the actions undertaken during the Petitioner’s alleged arrest since the same was carried out by the 2nd respondent’s officers. Furthermore, the Petitioner’s claim in his witness statement that its officers used a motor vehicle with normal number plates is false as its officers use official city county vehicles with unique number plates. 4. The 1st Respondent argued that the Petitioner failed to demonstrate how it violated his right to life under Article 26 of the Constitution as the Petitioner testified in Criminal case No. 1639 of 2013 that officers of the 2nd respondent from Central Police Station handcuffed him and placed him under police guard while he was undergoing treatment. On the argument by the petitioner that he lost his employment as a result of their actions, the 1st respondent argued that the petitioner failed to produce documentary evidence proving his employment and how the attempted arrest by the 1st Respondent’s officers led to his loss of the same. 5. The 1st Respondent asserted that the Petitioner failed, ignored or neglected to apply the exhaustion principle and use up all appropriate remedies prior to seeking audience with the instant court. Further, the 1st respondent asserted that had the Petitioner done so, he would have possible identified which officers allegedly arrested and shot him since the 1st and 2nd respondents both have internal disciplinary bodies for dealing with errant officers. Further the Petitioner did not demonstrate by way of evidence that he made complaints to the 1st respondent’s inspectorate service or their security and compliance sub sector. Reliance was placed in the case of **Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others (2015) eKLR** where the Court of Appeal observed:- ***It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of all matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.*** 1. Further reliance was placed in the case of **William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR** where a five judge bench opined as follows:- ***The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts….*** 1. The 1st Respondent argued that its officers acted within the confines of the law as agents of a public body. The 1st Respondent cited the case of **Republic vs Fazul Mohammed & 3 Others ex parte Okiya Omtatah Okoiti [2018] KEHC 9435 (KLR)** where the court observed:- ***Public bodies, no matter how well intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution. It follows that for the impugned decision to be allowed to stand, it must be demonstrated that the decision is grounded on law. As such, the respondent’s actions must conform to the doctrine of legality. Put differently, a failure to exercise power where the exigencies of a particular case require it, would amount to undermining the legality principle which is inextricably linked to the rule of law. Guidance can be obtained from the South African case of AAA Investments (Pty) Ltd Micro Finance Regulatory Council & Another where the court held as follows:- the doctrine of legality which requires that power should have a source in law, is applicable whenever public power is exercised. Public power can be validly exercised only if it is clearly sourced in law. The respondents have a statutory and a moral duty to uphold the law and to comply with the law governing their operations.*** 1. On the issue of damages, the 1st respondent referred to the case of **Gitobu Imanyara & 2 Others vs The Attorney General (2016) eKLR** which cited with approval the case of **Doucet Boudreau vs Nova Scotia (Minister of Education) 2003 SCC 62** which established a consideration on whether a remedy in a constitutional violation case is just and appropriate to include a remedy that will:- 2. ***Meaningfully vindicate the rights and freedoms of the claimants;*** 3. ***Employ means that are legitimate within the framework of our constitutional democracy;*** 4. ***Be a judicial remedy which vindicates the right while invoking the function and powers of a court; and*** 5. ***Be fair to the party against whom the order is made.*** 6. The 1st Respondent submitted that the Petitioner is not acting bona fide with a view of vindicating the cause of justice but he is acting in bad faith and for personal gain. Further the 1st Respondent submitted that the petitioner’s submissions should not take the place of evidence in the matter as the Petitioner has done in this Petition rather than presenting evidence supporting the petition. Reliance was placed in the case of **Daniel Torotich Moi vs Mwangi Stephen Muriithi & Another (2014) eKLR** where the Court of Appeal held:- ***We have already found that the 1st respondent failed to discharge his burden of proof of the existence of facts claimed of the companies, what they owned and whether property sales indeed took place, followed by transfers. So what we conclude is that the learned trial judge simply lifted the figure of Kshs. 80,161,720/- from the 1st respondent’s submissions and awarded it against the appellant. This was wholly in error. Submissions cannot take the place of evidence. the 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties marketing language each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented. In any event all the 1st respondent would claim and prove as loss could only relate to the shares in the companies and not the properties of the companies. And even that he did not do.*** **The 3rd Respondent’s Submissions.** 1. The 3rd Respondent identified two issues for determination as whether the charges levied on the petitioner in Milimani Criminal Case No. 1639 of 2013 were fabricated, unfounded, trumped up and malicious and whether the 3rd respondent’s prosecution of the petitioner infringed on his rights and fundamental freedoms or is an abuse of the process. On the first issue, the 3rd respondent submitted that the petitioner’s prosecution was based on sufficient evidence and public interest as he was charged with the offences in question after a review of the evidence and the investigation file revealed that there was sufficient evidence to have him prosecuted. Further, the same was vindicated by the trial court which found that there was a prima facie case and proceeded to place the Petitioner in his defence. Thus, the Petitioner cannot claim that they acted with malice simply because he was acquitted under Section 215 of the Criminal Procedure Code. Reliance was placed in the case of **Musili Mwendwa vs Attorney General & 3 Others [2016] eKLR** where the court stated as follows:- ***The mere fact of acquittal is not enough to lead to a conclusion that the respondents acted improperly or shoddily….all the relevant evidence must be considered including the fact that the trial magistrate found that there was a prima facie case made out against the petitioner.*** 1. The 3rd Respondent further submitted that the independence of the ODPP does not allow it to be dictated to or directed by any person or authority on how to exercise its prosecutorial powers including who to charge or prosecute. 2. The 3rd Respondent asserted that the petitioner did not demonstrate how his prosecution was an abuse of his fundamental rights. Furthermore, due process was observed and the Petitioner was afforded all the fair trial processes. The 3rd respondent cited the case of **Anarita Karimi Njeru vs Republic [1976-80]** and argued that the court laid out the principle that a person who alleges a violation of his constitutional rights and freedoms must plead such allegation with a degree of precision. Further, the alleged violations must be particularized in a reasonable precise manner and the specific provisions of the Constitution which availed the violated rights had to be stated as was the manner of violation and extent thereof. 3. Further reliance was placed in the case of **Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR** where the court stated:- ***Where a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with a reasonable degree of precision that of which he complains, the provisions said to have been infringed and the manner in which they are alleged to have been infringed.*** 1. The 3rd respondent argued that the proof is on a balance of probabilities and it is upon the petitioner to avail sufficient evidence to establish that his rights or freedoms were violated, which he failed to do. **Analysis and Determination** 1. The main issues for determination are:- 2. ***Whether the Petition meets the threshold for a constitutional Petition.*** 3. ***Whether the petitioner’s rights under*** ***Articles 26(1) & (3), 27(1), 28, 29(a), (c) & (f), 49(1)(a)(i) and 50(2) of the Constitution were violated.*** 4. ***Whether the petitioner is entitled to the orders sought.*** ***Whether the petition meets the threshold for a constitutional petition.*** 1. The test for a constitutional petition is premised on a satisfaction of the reasonable degree of specificity and precision in identification of the constitutional provisions infringed and a demonstration of the manner in which the alleged violations occurred. This principle was articulated in the **Anarita Karimi Njeru vs Republic (1979) KLR** where the Court held as follows: **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 precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.** 1. The principle was cited with approval in **Mumo Matemu vs** **Trusted Society of Human Rights Alliance (2014) eKLR** where the Court held thus: **We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.** **The principle in Anarita Karimi Njeru 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. Procedure is also a handmaid of just determination of 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 tenant of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that established the rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.** 1. It is therefore not enough to merely cite constitutional provisions without providing the specific facts that demonstrate how the alleged violations were actually committed as such information is necessary to enable the Respondent properly understand the case against it and respond or answer the allegations against it. 2. In instant case, the Petitioner predicates the Petition on Articles 26 (1) & 3, 27 (1), 28, 29 (a), c, & f; 49 (1) (a), and 50 (2) of the Constitution. The Petition therefore engages Petitioner’s right to life, equality before the law, human dignity, freedom and security of the person, rights of an arrested person and right to fair hearing. 3. Further, the Petitioner gave a detailed account of the conduct of the 1st, 2nd and 3rd Respondents that involved shooting, violent attacks, being handcuffed in hospital and subsequent prosecution actions which explain the manner the alleged violations were perpetrated. The Petitioner insisted that the subsequent prosecution was done without any reasonable or probable cause and was a mere smokescreen intended to conceal the grave violations actually perpetrated against him by the Respondents. 4. . It is therefore my considered view therefore, that as pleaded, this Petition sufficiently satisfies the threshold test of constitutional petitions. Whether the allegations will ultimately be proved is a matter of evidence and will be determined in the next issue. ***Whether the petitioner’s rights and fundamental freedoms, in particular the right to life, equality before the law, dignity, right to freedom and security and right to be informed promptly of the reason for the arrest and fair hearing were violated by the Respondents.*** 1. The petitioner has argued that his rights under Articles 26(1) & (3), 27(1), 28, 29(a), (c) & (f) and a(1)(a)(i) of the Constitution have been infringed. The relevant provisions of these Articles are as follows: 2. **Article 26 of the Constitution** provides: - *Every person has the right to life.* *A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.* 1. **Article 27 of the Constitution** provides: - *‘Every person is equal before the law and has the right to equal protection and equal benefit of the law’* 1. **Article 28 provides: -** *Every person has inherent dignity and the right to have that dignity respected and protected.* **Article 29(a), (c) & (f) provides: -** *Every person has the right to freedom and security of the person, which includes the right not to be-* *(a) deprived of freedom arbitrarily or without just cause;* *(c)subjected to any form of violence from either public or private sources;* *(f)treated or punished in a cruel, unhuman or degrading manner.* **Article 49 provides:-** **(1)** *An arrested person has the right-* *(a) To be informed promptly, in a language that the person understands, of-* *(i)The reason for the arrest.* 1. Elaborating on the freedom and security of the person, the Court in **Edward Akong’o Oyugi & 2 Others vs Attorney General [2019] eKLR** held as follows: ***It is the sacrosanct duty of the police to remember that citizens while in their hands are not denuded of their fundamental rights under the Constitution. The restrictions imposed on fundamental rights have the sanction of law by which the enjoyment of fundamental right is curtailed but the citizens basic human rights are not crippled so that the police officers can treat citizens in an inhuman manner. On the contrary, they are under obligation to protect fundamental rights of the citizens and prevent all forms of atrocities. The law enjoins the police to be scrupulously fair to an alleged offender and to ensure fair investigation and fair trial and also to ensure that the citizens constitutional and fundamental rights are not violated.*** 1. In **Frankline Kithinji Murithii vs Loyford Riungu Muriithi & 4 Others [2014] eKLR** the court concluded: - ***From the annextures FK1 and FK2, the appellant made complaints to the police and there is no evidence on record to indicate that the veracity of the complaints was established. There is no evidence on record to illustrate that there was psychological or physical abuse of the appellant by the respondent. There is no evidence on record that intense pain or punishment was meted to the appellant by the respondent. Inhuman treatment is defined to include physical or mental cruelty so severe that it endangers life or health. There is no evidence on record that the respondents have endangered the life or health of the appellant.*** 1. The question thus becomes, has the Petitioner substantiated by credible, cogent and admissible evidence that the freedom enshrined under Article 29 was violated by the Respondents? 2. It is not in dispute that the Petitioner was arrested. That fact is not controverted by the testimony of the Respondents. He was in fact subsequent to that arrest arraigned in Court and charged. Nevertheless, there is no evidence to counter the Petitioner’s assertions that his arrest was whimsical and based on the false accusation initially alleged against him by the askaris of the 1st Respondent that he had spit saliva on the street. No officer of the 1st Respondent came out to deny the fact that that was reason he was being arrested and to make matters worse, that charge was never preferred against him. Further, the Petitioner testified that even after he was subdued and arrested after the officers of the 1st Respondent came back with reinforcement, he was never informed of the reason for his arrest, thus his right under Article 49 (1) (a) was also violated. No evidence to rebut this positive first hand testimony was adduced by either the 1st or 2nd Respondent hence the evidence the Court has to accept as proved and find that the Petitioner’s freedom was unjustifiably interfered without just cause in breach Article 29 (a) of the Constitution and further his rights upon arrest of being informed of his reason of the arrest under Article 49 (1) (a) was also violated. 3. Concerning his right under Article 29 (c ), the right not to be subjected to any form of violence either from the public or private sources, the uncontroverted evidence of the Petitioner is that he was assaulted by a dozens of the 1st Respondent officers who roughed him up during the botched arrest and also was also shot and wounded by the 2nd Respondent’s officers who had accompanied the 1st Respondent’s askaris as he rose from the ground where he had fell down as he tried to escape the beating. He asserted this fact during direct examination and on cross-examination. During direct examination PW 1 stated: ***“After about 20 minutes, they came back with a pick-up full of county askaris. They came and swung on me and started beating me up. As I tried to escape, I fell down. While I was still lying down, I was shot in the stomach.”*** 1. PW 1 also reaffirmed this position during cross-examination by Ms. Kiage for the 1st Respondent. He testified thus: ***“I was beaten up. I was assaulted by County Askaris. I got a gunshot. I was shot while on the ground.”*** 1. Although the 1st respondent through its witness (DW 1), **Kipsang Kosgei** denied responsibility asserting its officers do not carry firearms, the Petitioner’s case was not limited to gunshot injury as his evidence has demonstrated above. It also encompassed serious beating by County Askaris. Furthermore, the 1st Respondent denial of its officers involvement is not convincing. Had there been no involvement by the 1st Respondent officers, Petitioner would not have been charged with assaulting one of the 1st Respondent’s officers, one PETER KAMAU MWANGI, a charge that ultimately, the Respondents could not substantiate. That very charge constitutes the clearest corroborative evidence of the 1st Respondent’s officers in the tribulation that befell the Petitioner. Despite this evidence of the involvement of the 1st Respondent’s officers, none of the officers that was directly involved testified in this Petition to contradict the Petitioner’s testimony. The evidence of DW 1 who was not present at the scene cannot override the direct evidence of the Petitioner as regards to what exactly transpired on that material day. I therefore find the involvement of the 1st Respondent’s askaris in the confrontation that led to the wounding of the Petitioner sufficiently established on a balance of probabilities. 2. As for the 2nd Respondent, it is not denied that there were armed officers at the scene or that the that firearm shot and injured the Petitioner belonged to the officers of the 2nd Respondent. None of the officers of the 2nd Respondent testified before this Court to justify the discharge of the bullet that severely injured the Petitioner in the stomach. There is no evidence that the Petitioner threatened the officers or was in way armed to the point that using the firearm in the circumstances was justified against him. The fact that Petitioner was shot and wounded is substantiated by medical treatment notes from Ngaira Dispensary and Kenyatta National Hospital where he was admitted and surgery performed on him. 3. On the second day of admission at Kenyatta National Hospital police officers from Central Police Station handcuffed him to the hospital bed. 4. These facts were not rebutted by any evidence from the Respondents. 5. **Section 61 of the National Police Service Act** explicitly provides that the police service shall be nonviolent in execution of its duties and may use force or firearms only as a regulated last resort. It states: **(1) Subject to subsection (2), a police officer shall perform the functions and exercise the powers conferred by the Constitution and this Act by use of nonviolent means.** **(2) Despite subsection (1), a police officer may use force and firearms in accordance with the rules on the use of force and firearms contained in the Sixth Schedule.** 1. The conditions as to the use of force in the Sixth Schedule provide thus: **(1) A police officer shall always attempt to use non violent means first and force may only be employed when non violent means are ineffective o without any promise of achieving the intended result.** **(2) The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.** **(3) When the use of force results in injuries-** **(a) the police officers present shall provide medical assistance immediately and unless there are good reasons, failing to do so shall be a criminal offence; and** **(b) shall notify relatives or close friends of the injured or affected persons.** **(4) A police officer who uses any form of force shall immediately report to the officer’s superior explaining the circumstances that necessitated the use of force and the supervisor shall judge the rightfulness and decide the next step, subject to these regulations.** **(5) Any use of force that leads to death, serious injury and other grave consequences shall be reported immediately by the officer in charge or another director superior of the person who caused the death or injury, to the Independent Police Oversight authority who shall investigate the case.** 1. Further, the conditions as to the use of firearms in part B of the Sixth Schedule of the NPSA are stringent on when firearms may be used by police officers as follows:- **(1) Firearms may only be used when less extreme means are inadequate and for the following purposes-** **(a) saving or protecting the life of the officer or other person; and** **(b) in self defence or in defence of other person against imminent threat of life or serious injury.** **(2) An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed except-** **(a) where doing so would place the officer or the other person at risk of death or serious harm; or** **(b) it would be clearly inappropriate or pointless in the circumstances.** **(3) Any use of firearm, even if there is no injury, shall immediately be reported to the officer’s superior.** **(4)** **Any use of firearms that leads to death, serious injury and other grave consequences shall be reported by the officer in charge or another direct supervisor of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.** 1. Part D of the Sixth Schedule of the NPSA on preventing escape prescribe circumstances that justify mechanical restraint by handcuffs. **(1) A police officer may use instruments of restraint to prevent the escape of a detainee or prisoner-** **(a) to prevent escape of a detainee; and** **(b) to prevent the detainee from self injury or injuring others or damaging property** **(2) An instrument of restraint may-** **(a) not be applied for longer than necessary to secure the purpose for which it is used;** **(b) not as a punishment; and** **(c) Shall be removed immediately after the purpose for which it is used is achieved.** 1. **Section 24 of the Criminal Procedure Code** prohibits the use of unnecessary restraint on an arrested person. It provides- “The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. 2. There is no evidence that was provided by the Respondents that justified the use of firearm against the Petitioner or the extremity of following him to the hospital where he was nursing the gunshot injury and chaining him to the hospital bed for three days. On the basis of the evidence on record, I find Article 29 (c ) of the Constitution was violated in regard to the Petitioner. 3. The Constitutional Court of South Africa in discussing this right in the case of **Prinsloo vs Van der Linde and Another (CCT4/96) [1997] ZACC 5** opined as follows: ***“32. In Dworkin’s words, the right to equality means the right to be treated as equals, which does not always mean the right to receive equal treatment. We find support for the approach we advocate in the following passage from the judgment of this Court in The President of the Republic of South Africa and Another v Hugo:*** ***“At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that is the goal of the Constitution and should not be forgotten or overlooked.”*** 1. In the same way, the Supreme Court in **Gichuru vs Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (Civ) (22 October 2021) (Judgment)** guided as follows:- ***“[47] This court had occasion to lay emphasis on the burden of proof in cases of discrimination in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR where the Supreme Court applied Section 108 of the Evidence Act in requiring the claimant to prove his claim in a matter involving discrimination.*** 1. Similarly in the case of **Federation of Women Lawyers Fida Kenya & 5 Others vs Attorney General & Another [2011] eKLR** it was stated thus:- ***In our view, mere differentiation or inequality of treatment does not per se amount to discrimination within the prohibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does not rest on any basis having regard to the objective the legislature had in view or which the constitution had in view. An equal protection is not violated if the exception which is made is required to be made by some other provisions of the Constitution. We think and state here that it is not possible to exhaust the circumstances or criteria which may afford a reasonable basis for classification in all cases.*** 1. The 3rd Respondent approved the charges against the Petitioner in Criminal Case No. 1639 of 2013. Despite the Petitioner having been shot and seriously injured by a firearm, the 3rd Respondent who has a constitutional duty to consider public interest, the interest of the administration of justice, the need to prevent abuse of the legal process- failed to exercise due diligence. Although vested with power to direct the Inspector General of the National Police Service to investigate any relevant information, the 3rd Respondent did not bother to independently verify the circumstances surrounding the near fatal shooting of the Petitioner before authorizing his prosecution straight from the surgical bed. 2. To date, the 3rd Respondent has not demonstrated to this Court that any independent inquiry has been conducted into the incident prior to or after making the decision to charge the Petitioner yet a life hung in the balance. This Court cannot by any measure be persuaded that the conduct of the 3rd Respondent reflected even handed application of the law. It is not unsurprising that the trial court was able to see through this double standard and ultimately dismissed the trumped criminal charges that were a mere camouflage to conceal the grave constitutional violations meted against the Petitioner. 3. I find that the 3rd Respondent violated the principle of equal protection and equal benefit of the law in the manner it handled the Petitioner vis-vis those others involved in this incident. 4. Concerning the right to inherent dignity and the right to have the dignity respected and protected, in **M W K & another vs Attorney General & 3 others (2017) eKLR** elaborated thus: ***“49. Article 28 provides no definition of dignity. However its role and importance as a foundational constitutional value has been emphasized in a number of cases. In the South African case of S v Makwanyane,[18] O'Regan J pointed out that "without dignity, human life is substantially diminished" and pronounced the prime value of dignity in the following terms:-*** ***“The importance of dignity as a founding value of the ... Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. The right is therefore the foundation of many of the other rights that are specifically entrenched in Chapter 3.”*** ***50. O’Regan J drew attention to the centrality of human dignity as a constitutional value when he stated:-*** ***“Human dignity … informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. ... dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”*** 1. The 1st and 2nd Respondents violently tossed the Petitioner to the ground, shot him, threw him into the floor of the pick-up truck, and then drove with him around the city as they made other arrests while he lay motionless bleeding from the gunshot wound on the floor of the pick-up truck. They subsequently followed him to hospital where he had undergone surgery and chained him to the hospital bed. These were deliberate, calculated and sequential acts of brutality that profoundly dehumanised the Petitioner, stripped him of his inherent dignity completely and subjected him to inhuman and degrading treatment in violation of Article 28 and 29 (f) of the Constitution. 2. The right under Article 49(1)(a)(i) is amplified by the **Arrest and Detention Rules in the Sixth Schedule of the NPSA. Rules 1 and 2** provide:- **(1) In the performance of the functions and exercise of the powers of arrest and detentions set out in the Constitution and this Act or any other law, a police officer shall carry out an arrest and detention only as provided for in law.** **(2) A police officer shall accord an arrested or detained person all the rights set out under Articles 49, 50 and 51 of the Constitution.** 1. This right was explained in the case of **Chebor vs Karuri, Chief Inspector OCS Mochongoi Police Station & Another; National Police Service Commission & Another (Interested Parties) (Petition E003 of 2024) [2025] KEHC 5485 (KLR) (30 April 2025) (Judgment)** where the court held:- ***The petitioner herein alleged that her right was violated on the account of her not being informed of the reason for her arrest. It is noteworthy that the existence of the power to arrest is one thing. The justification for the exercise of it is quite another thing. The law demands that whenever an arrest is made, the accused person has the right to be informed not only that he is being arrested but also of the reasons or grounds for his arrest. Thus the police officer must be able to justify the arrest part from his power to do so. He does that by communicating to the arrested person the full particulars of the offence for which he is arrested or other grounds for such arrest at the time of the arrest. Thus it is incumbent upon those who deprive other persons of liberty in the discharge of what they conceive to be their duty to strictly and scrupulously observe the forms and rules of law.*** 1. The petitioner argues that he was arrested and he was not informed on the allegations against him. The record shows that the petitioner was arrested upon being discharged from Kenyatta National Hospital and taken to Central Police Station where he recorded a statement as to the events of 9/10/2013. He was thereafter locked up in the cells and on 14/10/2013 he was escorted to Milimani Law Courts where he was arraigned in Criminal Case No. 1639 of 2019 charged with the offences of incitement to violence, willfully obstructing a police officer and assault causing actual bodily harm. There is no evidence on record that the petitioner was given reasons for his arrest and even from his statement that he recorded at Central Police Station on 13/10/2013 does not indicate so. The statement shows clearly that the petitioner recounted the events of 9/10/2013 whereby he was stopped by askaris of the 1st respondent on account of him spitting saliva on the ...... Furthermore, he was arrested was not in line with the law and thus his rights as an arrested person and dignity. ***Whether the petitioner is entitled to the orders sought*** 1. The Petitioner sought various reliefs among the compensation. Article 23 (3) outlines some of the reliefs that a successful party in a Constitutional Petition may be awarded to include: 2. **A declaration of rights;** 3. **An injunction;** 4. **A conservatory order;** 5. **A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;** 6. **An order for compensation; and** 7. **An order of judicial review.** 8. I will take a moment to discuss compensation in Constitutional matters before prescribing the appropriate reliefs in this matter. 9. An important factor the Court needs to point out at the outset is that the principles for award of damages in constitutional claims operate on standards that are different or distinct from those applied in tortious liability claims or under the common law principles. Under the tort law for instance, proof of actual loss and damage is a condition precedent for award of damages but in constitutional claims, that condition is not mandatory, all that is required is to establish a cognisable constitutional harm or violation, the absence of quantifiable or pecuniary loss notwithstanding. 10. The second important principle governing award of damages for constitutional reliefs is that they are not intended to punish the violator, the primary purpose is to vindicate the constitutional right that has been infringed and to affirm the dignity of the victim or right holder hence the damages awarded are vindicatory or compensatory in nature and are not intended at assuming a punitive character. These guiding principles were aptly articulated by the Supreme Court in the case of **Charles Muturi Macharia & 6 Others v Standard-Group & 4 Others (SC Petition No.13 (E015) of 2022)** as follows: ***“[91] By the provisions of Articles 22 and 23 of the Constitution, the High Court has the power and authority to enforce and uphold the Bill of Rights in claims of infringements. In proceedings brought by any person claiming that a right or fundamental freedom has been denied, violated or infringed, or is threatened, the court may, under Article 23 grant appropriate relief, including:*** ***“(a) a declaration of rights*** ***(b) an injunction*** ***(c) a conservatory order*** ***(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24.*** ***(e) an order for compensation*** ***(f) an order of judicial review…*** ***…under common law principles, it is settled that an injured party is entitled to damages for the loss and injury suffered under private law causes of action, like in tortious claims. In situations like those, compensation for personal loss depends on proof of such loss or damage. However, arising out of the violation of constitutional rights and fundamental freedoms of an individual under public law, the nature of the damages awardable are broadly compensatory or vindicatory, as should be apparent from the list of examples of reliefs in Article 23. While it is not necessary to prove loss or damage in cases of constitutional rights violations, the court may consider the extent, nature, gravity and immensity of harm suffered by the aggrieved party when determining the appropriate remedy. In deserving cases, the redress may be in the form of an award of damages to compensate the victim. In some cases, a suitable declaration, an injunctive or conservatory order, or an order of judicial review will suffice to vindicate the right.*** ***[95] In assessing the appropriate sum to be awarded as compensation, the court must feel satisfied that the sum will afford the victim adequate redress to vindicate the victim’s constitutional right. Assessment of the right quantum for compensation will take into account all the relevant facts and circumstances of the violation and the victim in the particular case, bearing in mind any aggravating features. We stress that the purpose of constitutional relief of an award of compensation is not necessarily intended to punish the violator, but only to vindicate the right of the victim.*** 1. ***….*** ***Therefore, once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation. For these reasons, it can be said that the approach in awarding damages or compensation in constitutional rights violation cases is different from that in tortious claims….”*** 1. Furthermore, the Court of Appeal in **Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others [2021] KECA 328 (KLR)** held as follows: ***“15. The relevant principles applicable to award of damages for constitutional violations under the Constitution were also explained by the Privy Council in the case of Siewchand Ramanoop vs The AG of T&T, PC Appeal No 13 of 2004. It was held by Lord Nicholls at Paragraphs 18 & 19 that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense as follows:.*** ***“When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law…”*** 1. In **Gitobu Imanyara & 2 Others vs Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR** the Court of Appeal held:- **It seems to us that the award of damages for constitutional violations of an individual’s right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court’s discretion for award of damages in constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In other words, an award of reasonable damages may be called for in addition to the declaration….”** 1. The Petitioner r submitted that the Court should award exemplary damages. This Court is not persuaded that going the punitive way serves the object of granting constitutional remedies. A constitutional relief serves the higher public goal of restoring the rule of law and constitutionalism, it is not a transactional event and its aim, unlike exemplary damages is not punitive. In **Ken Odondi & 2 Others vs James Okoth Omburah t/a Okoth Omburah & Company Advocates [2013] eKLR,** the Court of Appeal explained that exemplary damages are over and above the required compensation and are meant purely to punish. It held thus: **“Exemplary damages on the other hand had gone beyond compensation and are meant to punish the defendant. Aggravated damages will be ordered against a defendant who acts out of improper motive e.g where it is attracted by malice; insistence on a flurry defence of justification or failure to apologize**.” 1. The award of exemplary or punitive damages is inconsistent with the vindicatory or compensatory principle that is the foundation for the assessment of damages in constitutional claims. In granting constitutional reliefs, the Court seeks to affirm the supremacy of the Constitution and uphold the fundamental rights and freedoms protected in the constitution by ensuring harm suffered is sufficiently redressed, not punished as punishment is never the objective behind granting of constitutional reliefs. The goal of punishment can be achieved under the common law or the criminal law. The claim for exemplary damages is thus rejected. 2. Having the above principles in mind, what then would be the appropriate measure of damages/compensation to the Petitioner for the violation of the proved constitutional rights in the hands of the Respondents? 3. In deciding what would be the extent of compensation, this Court would focus on assessing what is appropriate and just in the circumstances of the case and no more. 4. In the case of **Koigi Wamwere vs Attorney General [2015] eKLR**, the Court of Appeal found that the sum of Kshs. 2.5 million awarded by the High Court to be patently inadequate and enhanced the award to a global sum of Kshs. 12 million. The violations in the said case involved extended periods of detention without trial, torture at Nyayo House for 11 days and false arraignment for fake robbery with violence charges. 5. In **Jennifer Muthoni Njoroge & Others vs the Attorney General [2012] eKLR** four of the petitioners were each awarded general damages for amounts ranging between Kshs. 1.5 million and Kshs. 2 million for torture, cruel and degrading treatment and unlawful detention for periods ranging between 7 days and 14 days. 6. In **Benedict Munene Kariuki & 13 Others vs the Attorney General High Court Petition No. 722 of 2009**, the plaintiffs were each similarly awarded general damages of Kshs. 2 million for similar constitutional violations of torture, cruel and degrading treatment and unlawful detention ranging from periods of 7 days to 72 days. 7. In **Ngethe wa Murimi alias Ngethe Kuria Murimi vs the Attorney General [2017] KEHC 8386 (KLR)** the petitioner was detained unlawfully at Nakuru Central Police Station for ten days and at the Nyayo House Torture Chambers for eight days, where he was tortured. The court awarded him general damages of Kshs. 1.5 million as compensation. 8. The above principles and authorities provide a useful guide to this Court in assessing the appropriate measure of compensation to award in the instant case. 9. Consequently, this Court grants the following reliefs: * + 1. *A* ***declaration*** *is hereby issued that the* ***assault****,* ***shooting*** *and* ***injuring*** *the Petitioner on 9th October, 2013 amounted to violation of Petitioner’s fundamental right to security of the person, including the right not to be subjected to any form of violence and right to freedom from cruel, inhuman and degrading treatment contrary to* ***Article 29 (c ) and (f) of the Constitution****.* 2. *A* ***declaration*** *is hereby issued that the* ***arrest*** *and* ***detention*** *of the Petitioner by the Officers of the 1st and 2nd Respondent for a period of* ***5 days*** *between* ***9th October 2013*** *and* ***14th October 2013*** *without**reasonable**or lawful justification**and without informing the Petitioner of the reason of the arrest, violated the Petitioner’s fundamental right to the security of the person and the right not to be deprived of personal liberty arbitrarily or without just cause. The said arrest and detention violated Petitioner’s right as an arrested person under* ***Article 29 (a) and 49 (1) (a) (i)*** *of the* ***Constitution****.* 3. *A* ***declaration*** *is hereby issued that chaining the Petitioner to the hospital bed at Kenyatta National Hospital for* ***3 days*** *between* ***11th October 2013*** *to* ***13th October, 2013*** *without any reasonable and lawful justification violated Petitioner’s fundamental right to human dignity under Article 28 and the right to security of the person, including the right not to be deprived of liberty arbitrarily and the right to freedom from cruel, inhuman and degrading treatment contrary to Article 29 (a) and (f) of the Constitution.* 4. *The Petitioner is awarded compensation of* ***Kenya shillings Four Million Five Hundred Thousand only (Kshs. 4,500,000/-)*** *for the violation of his fundamental rights and freedoms which shall be borne by the 1st, 2nd and 3rd Respondents jointly and severally.* 5. *Costs of this Petition.* 10. Orders accordingly. ***Dated, signed and delivered at Thika this 2nd day of July2026.*** **...............................................** **L. N. MUGAMBI** **JUDGE**