https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8205

Njoroge v Inspector General of Police & 10 others (Constitutional Petition E289 of 2023) [2026] KEHC 8205 (KLR) (Constitutional and Human Rights) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8205 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E289 of 2023 LN Mugambi, J June 11, 2026 Between Peter Mwangi Njoroge Petitioner and The Inspector General Of Police 1st Respondent The Attorney General 2nd Respondent The Director Of Public Prosecutions 3rd Respondent and Bernard Njinu Njiraini 1st Interested Party Joseph Kiago Kaguru 2nd Interested Party Crispus Macharia Waithaka 3rd Interested Party Derrick Njeru Kago 4th Interested Party Mohammed Hassan Ali 5th Interested Party Abdi Hirsi Yusuf Alias Blackie 6th Interested Party Polly Anne Njeri Kamau 7th Interested Party Gilbert Zully 8th Interested Party Judgment Introduction 1.The Petition dated 8th August 2023 is supported by the Petitioner’s affidavit in support of even date. 2.The Petition challenges his arrest and detention by the 1st respondent on the basis that it was unlawful. Further, that the consequential criminal proceedings are predicated on evidence obtained in violation of his constitutional rights. 3.The Petitioner seeks the following reliefs:a.A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Article 28 of the Constitution of Kenya was violated by the agents of the 1st respondent.b.A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 29(c), (d), (e) and (f) of the Constitution of Kenya were violated by the agents of the 1st respondent.c.A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 31 of the Constitution of Kenya were violated by the agents of the 1st respondent.d.A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 49(1)(a)(i) and (ii), (b), (c), (d) and (f) and Article 50(4) of the Constitution of Kenya were violated by the agents of the 1st respondent.e.A declaration that the statements recorded by the petitioner, all documents seized from the petitioner and all information, confessions or admissions obtained from the petitioner was obtained in a manner contrary to Article 50(4) of the Constitution.f.A declaration that the trial in Criminal Case No. MCCR E361/2023 Republic vs Peter Njoroge Mwangi & 8 Others was commenced upon the arrest, unlawful detention and torture of the petitioner and therefore all information obtained for use in the trial was obtained by means of torture, cruel, inhuman and degrading treatment of the petitioner and its use in the court proceedings is therefore prohibited under the provisions of Article 50(4) of the Constitution of Kenya and criminalized under Section 9 of the Prevention of Torture Act.g.An order for compensation as followsi.Special damagesii.General damagesiii.Aggravated damagesh.An order of certiorari to bring to this court and quash the decision to charge made by the 2nd respondent on the basis that the decision was based on information or evidence obtained in a manner that is contrary to the provisions of Article 50(4) of the Constitution and is contrary to Section 9 of the Prevention of Torture Act.i.An order of prohibition stopping the court from proceeding with the trial to the extent that it is based on information or evidence obtained in a manner that is contrary to the provisions of Article 50(4) of the Constitution and is contrary to Section 9 of the Prevention of Torture Act.j.Costs of the petition.k.Any other relief that this Honourable Court considers appropriate and just to grant. 4.In opposition to the Petition, the 1st & 3rd respondents filed a undated Replying affidavit. 5.The 2nd respondent filed grounds of opposition dated 14th May 2024. The Petitioner’s Case 6.The Petitioner is a Director of a company known as Vinepack Limited which manufactures alcoholic drinks. 7.The Petitioner avers that sometime in February 2023, he learnt through the Association of Alcoholic Beverage Manufacturers of Kenya (ABAK) in which Vinepack Limited is a member, that there were two 20 x 20 feet shipping containers of sugar which had been imported into the country but had been declared unfit for human consumption. 8.According to the Petitioner, members of the ABAK Association had been invited to express interest in destroying the sugar through the process of distillation to produce ethanol. The petitioner avers that he went to Mombasa to see the cargo and followed up with Kenya Revenue Authority (KRA) to secure the deal. 9.The Petitioner pleads that he learnt that the sugar was imported into Kenya from Zimbabwe by two Kenyan companies identified as Meracko Limited and Sirrocco Limited sometime in July 2018 but the sugar was not cleared at the Mombasa port because it was found to have failed the Kenyan standard of importation by the Kenya Bureau of Standards (Kebs). The product did not contain expiry dates displayed on the packaging hence it was declared unfit for human consumption and upon condemnation, the consignment was deposited by the KRA with the Mediterranean Shipping Company (MSC) through their local agent Ocean Freight Limited pending reshipment or destruction. Further, the importers were instructed to re-ship the sugar back to the country of origin within 30 days from the date of condemnation or have the consignment destroyed at the importers expense. 10.The Petitioner contends that the importers were unable to reship the sugar within the set timelines and their only option was to have the sugar destroyed at their expense. The sugar was subsequently advertised in the Kenya Gazette on 2nd July 2021. 11.The Petitioner avers that on 16th February 2023, Vinepack’s Limited expression of interest to destroy the sugar by distillation was approved and was granted authority to take possession of the sugar together with a company called Asset & Cargo Limited who had been appointed by the ocean Freight Limited for the purpose of handling the logistics and delivery to the destruction site. 12.The Petitioner contends that destruction multi-agency committee (MAT) comprising of government agencies was put in place to supervise the release and wholesome delivery of the sugar to Vinepack’s premises in Thika. The sugar was removed from the port on 19th April 2023 and conveyed by road on 40 trucks fitted with Regional Electronic Cargo Tracking System (RECTS) to ensure delivery to the destination and the cargo was delivered at Vinepack Limited’s factory located at Thika where the tracking devices were removed from the trucks then moved with the approval of the MAT to a warehouse located about 500m away at Kings Commodities Warehouses, Thika where there was sufficient storage space. The sugar was offloaded for two days and a team of six KRA officials joined the MAT at the Kings Commodities warehouse and after offloading the consignment placed custom seals on the doors of the warehouse effectively taking possession and control of the sugar. 13.The Petitioner contends that KRA officers informed him that the purpose of placing custom seals yet the consignment had been released to them was because there was need for further consultations by KRA on the consignment when to reopen the warehouse. One Crispus Waithaka of Asset & Cargo placed padlocks on the door because he had a role after delivery of the consignment and surrender of the shipping containers to the shipping line to ensure that destruction of the consignment took place and deliver a destruction report for processing a destruction certificate. The petitioner averred that he was comfortable in the knowledge that the premises and the sugar was in custody of the KRA under custom seal. 14.On 3rd May 2023, at about 9.30am, the Petitioner was summoned to a warehouse located at Kings Commodities in Makongeni, Thika in connection with an investigation involving a consignment of condemned sugar designated for destruction by distillation but which was discovered had disappeared. 15.The Petitioner was arrested by police officers at the warehouse and his documents, mobile phone and motor vehicle were immediately confiscated. He was handcuffed and detained. 16.The petitioners avers that he was continuously detained by the police officers for five (5) days without being presented before any court of law. During the said period, the Petitioner alleges that he was interrogated and tortured in a bid to obtain confession to incriminate him and others in the investigation relating to the condemned sugar. The petitioners reveals that the torture, interrogation and confiscation of his personal belongings and documents was done with the intention of collecting incriminating information to support the charges against him in MCCR E361/2023. 17.The petitioner argues that he was detained beyond the period stipulated under the Constitution and his rights were violated equally violated while in the unlawful detention. Further, he was handcuffed placed in the boot of a police motor vehicle in an undignified and inhumane condition. He was booked at Kileleshwa Police Station after a 56=hour ordeal since his arrest where his detention continued for five (5) days from the time of his arrest. 18.The petitioner avers that he was granted police bond on Monday 8th May 2023 when he expected to be taken to court but was instead directed to report at the Nairobi Area police station every morning. The Petitioner contends that he would be kept waiting at the Nairobi Area Police station from morning until evening every day while on police bond until on Friday 12th May 2023 when his bond was cancelled and he was again detained at the Kileleshwa police station for arraignment on Monday 15th May 2023. According to the Petitioner, no reason was given for the selective cancellation of the bond on 12th May 2023. He was then charged together with others on 15th May 2023 in MCCR Case No. E361/2023. 19.The Petitioner avers that he suffered and continues to suffer substantial loss at the hands of the police officers and his health has deteriorated. He states that he developed a nerve injury and has been in and out of hospital since his incarceration due to health conditions arising from the period of his detention and torture by the police. The 1st & 3rd Respondent’s Case 20.The Replying affidavit was sworn by SGT Rinos Musungu No. 58803, the lead investigator in the case. On behalf of the 1st and 3rd Respondent, he depones that on 3rd May 2023, a team of DCI officers was tasked to carry out investigations into the loss of condemned brown sugar which was in the custody of Vinepark Limited, a company associated with the Petitioner. 21.The deponent swears that during their investigations, they established that on 3rd July 2018, two companies, Merako Investments (K) Limited and Sirocco Investments (K) Limited imported brown sugar from Zimbabwe totalling to about 20,064 bags (weighing 50 kilogrammes each) and packed in 40x20 feet containers vide bill of lading MSUB1175403 and MSCUB175411 respectively. It was further established that the goods had originated from Mozambique (a non-COMESA member country) but the description given to the consignor was Zimbabwe Sugar Sales-PVT so as to pass off as brown sugar imported from Zimbabwe. 22.The deponent swears that on 16th July 2018, the goods imported by Sirocco Investments (K) Limited and Merako Investments (K) Limited were condemned by the Kenya Bureau of Standards (KBS) for being unfit for human consumption after failing to meet the Kenya quality standards as they lacked the date of manufacturing or expiry. On 9th June 2020, the deponent deposes that KBS through a letter REF: KEBS/KLD/AG/VOL.33(38) informed the Chief Manager Port Operations at KRA that they had inspected the consignment in question and recommended for its destruction. Similarly on 19th June 2020, the National Environment and Management Authority (NEMA) recommended that the consignment be destroyed by denaturing and incineration at Bamburi Cement Factory. 23.The 1st Respondent deponed that on 15th January 2020, Oceanfreight (EA) Limited wrote to the Chief manager at KRA Ports Operations vide letter REF: OFEA/UAC/MISC informing them that the importer had appointed Galgamesh Enterprises Limited to handle the destruction process on its behalf since their request to reship the consignment back to the country of origin had been rejected. The 1st Respondent stated further that on 2nd July 2021, the Commissioner of Customs and Border Control gazetted the destruction of the condemned sugar vide legal notice number 6542. On 9th December 2022, KBS Managing Director Lt Col. (Rtd) Nernard Njiraini wrote to the Commissioner General KRA vide letter REF: KEBS/CONF/DIR/1/2/VOL3 confirming that the Bureau had no objection to conversion of condemned sugar ethanol through distillation as requested by Galgamesh Enterprises Ltd. 24.The Petitioner through Vinepack limited wrote a letter dated 6th February 2023 and expressed interest to purchase the condemned sugar for purposes of industrial distillation after having inspected the consignment and the request was accepted by the KRA Commissioner of Customs and Border Control. on 5th April 2023, it was resolved by the Destruction Multi-agency Committee that the consignment had overstayed at the customs yard and there was need to collect warehouse rent or release the sugar that was held at Mitchell Cotts Shimanzi CFS for purposes of industrial distillation. 25.The deponent reveals that the consignment was released to Vinepack Limited on 12th April 2024 after verification by KRA Customs officials and Regional Electronic Cargo Tracking System (RECTS) gadgets and seals were installed. The consignment reached the premises of Vinepack Limited on 20th April 2023 but the Petitioner requested to move the consignment to a rented go-down at Kings Commodities Ltd alleging that the storage facilities were inadequate, which information he knew before transporting the consignment from Mombasa. The go down was sealed with customs seals serial numbers 0295454 and 0295457 by KRA investigations and enforcement officers. 26.On 3rd May 2023, a team from DCI Operations Support Unit and KRA investigations department visited the go down at Kings Commodities Limited upon receiving intelligence information that the sugar had been diverted to the local market for domestic use. It was further established that the fourth interested party one Derrick Kago had changed and put new customs seals numbers 0295463 and 02955460. Upon opening the go down, the whole consignment of sugar that had been kept there was missing and the Petitioner was unable to explain how the condemned sugar left the premises. The petitioner agreed to assist the investigations in the recovery of the missing consignment which included travelling to Mombasa to stop any further distribution of the sugar. 27.The deponent reveals that during the operation to recover the lost consignment, the investigation team managed to recover 12 bags of condemned brown sugar branded Hullet from Zimbabwe in a store owned by Abdi Hirsi Yusuf alias Blacky, the 6th interested party herein. The investigations further revealed that the petitioner and the interested parties were involved in an intricate conspiracy to divert the condemned sugar from destruction as required by law into the market for domestic use despite the fact that the sugar was unfit for human consumption. 28.The deponent states that the petitioner and the eight interested parties were arraigned before Milimani Law Courts for the offence of conspiracy to commit a felony contrary to Section 393 of the Penal Code, abuse of office, stealing and two other custom related offences. Further, the decision to charge and prosecute the petitioner and the interested parties was based on evidence placed before the 3rd respondent by the investigative bodies after the petitioner had been given an opportunity to be heard through his statement which was recorded accordingly. 29.The deponent argues that the Police Service Act under Section 24 stipulates the functions of the police and under Section 35 outlines the functions of the DCI which include a duty to investigate any complaint once a complaint is made, apprehension of offenders and enforcement of all laws and regulations with which it is charged. The deponent reveals that the petitioner was arrested on 3rd May 2023 within Thika town and he willingly led the officers to arrest two more suspects within Nairobi Business District on the same date. The Petitioner further led them to Mombasa on the same date where he willingly led them in identification and arrest of three more suspects on 4th May 2023 before the officers and all the suspects travelled back to Nairobi on the night of 4th and 5th May 2023 where they arrived in the morning of 5th May 2023 before the Petitioner recorded his statement. At the time of recording his statement, the Petitioner never raised any complaint in relation with being tortured, he only appeared fatigued due to the long travel. 30.The deponent states that the Petitioner was booked at Kileleshwa Police Station on 5th May 2023 under OB No. 21/05/05/23. He was later bailed out on cash bail of Kshs. 100,000/- on 8th May 2023 from Kilimani Police Station and he continued to report to the investigative agencies daily from 9th May 2023 up to 22nd May 2023 when he and the eight others were arraigned before the Milimani Law Courts. The deponent argues that the Petitioner’s allegation that he was tortured is not supported and is an afterthought calculated to defeat justice in Milimani Law Courts Criminal Case No. 361/2023. The 2nd Respondent’s Case 31.The 2nd respondent argues that it has a constitutional mandate under Article 156(4) of the Constitution as well as Section 5 of the Office of the Attorney General Act which functions do not include exercising of supervisory powers over the 1st and 3rd respondents and there is no allegations against it hence has no business being dragged in the instant petition. The 2nd respondent further argues that the petition has not pleaded with precision as it fails to provide adequate particulars of the claim relating to any alleged violation of the Constitution. 32.The petition was disposed of by way of written submissions. Petitioner’s Submissions 33.The petitioner submitted that it is not in contention that he was arrested on 3rd May 2023 and has been in the custody of the police officers from 3rd May to 8th May 2023 yet he was not presented before a court of law and 3rd May 2023 fell on a Wednesday. Further the Petitioner argued that from the replying affidavit, it is discerned that he was not booked at any police station from the time of his arrest on 3rd May 2023 until 5th May 2023when he arrived at Kilimani Police Station. The petitioner submitted that during that time he was handcuffed in the boot of a police motor vehicle with no access to food or a health facility. The said position has been corroborated by the written statement of Faith Kiara, Chief Inspector Michael Kirwa Melly, Godhard Mburu Ngugi and PC Ronald Chemosit. The petitioner argued that he had proved that his constitutional rights under Article 49 were violated and he relied on the case of Salim Kofia Chivui vs Resident Magistrate Butali Law Courts & Another [2012] eKLR where the court found that the provisions of Article 49 provide the ‘outer limits’ for presenting an arrested person before a court of law upon expiry of 24 hours or at the next available opportunity if the 24 hours ends outside ordinary court hours. 34.The petitioner asserted that upon his arrest on 3rd May 2023 he was handcuffed and physically assaulted by police officers named in his supporting affidavit dated 8th August 2023. The said officers have recorded statements as prosecution witnesses before the trial court but have not responded to the allegations of torture and physical abuse. The petitioner further submitted that he had no access to his phone and his right to access any person that could help in the situation was taken away. In support of his contentions, the petition stated that he annexed treatment notes and a medical examination report pointing to the aftermath of the ordeal. The petitioner argued that two nights spent handcuffed in the boot of the police vehicle was degrading, inhuman and contrary to Articles 28 and 29 of the Constitution. 35.The petitioner cited Article 50(4) of the Constitution and submitted that the respondents’ agents violated his rights under articles 28, 29 and 49 of the Constitution in pursuit of information and evidence intended for consumption in MCCR 361/2023. Reliance was placed on the case of Mue & Another vs Chairperson of Independent Electoral and Boundaries Commission & 3 Others (Presidential Election Petition 4 of 2017) [2017] KESC 45 (KLR) as follows:-The petitioners, using the above test, do not show how they were able to obtain the internal memos showing communication between employees of the 2nd respondent. Further, it has been alleged that these memos have only been shown in part, and taken out of the context to advance the petitioners’ case against the 1st and 2nd respondent, and to an extent, the 3rd respondent. No serious answer has been given to that contention. The use of such information before the Court, accessed without following the requisite procedures, not only renders it inadmissible but also impacts on the probative value of such information. This is the point of divergence between the instant matter and the case of Nicholas Randa Ombija vs Judges and Magistrates Vetting Board (supra). In the present instances, there has been a clear violation of laid out procedure of law attributable to access of information and violation of the rights of privacy and protection of property that the 2nd respondent is guaranteed under the Constitution…. 36.Further reliance was placed in the decision in Mohammed Feisal & 19 Others vs Henry Kandie, Chief Inspector of Police, OCS Ongata Rongai Police station & 7 Others; National Police Service Commission & Another (Interested Party) [2018] eKLR in determining whether the use of such evidence would render the trial unfair or otherwise detrimental to the administration of justice. The Honourable Court stated:-To arrest, detain or investigate must be accrued out within constitutionally permissible parameters. Therefore, any system of law which keeps in mind the constitutional provisions must ask the fundamental question whether in order to fight crime its necessary to derogate from the bill of rights entitlements by denying a suspect of misdemeanours right to liberty, freedom, dignity, equality, freedom from torture, degrading and inhuman treatment. The act of apprehending a person without notice even if its for a short period has far reaching effect on his or her rights to human dignity. I have in view the harm done to the individual and his or her family before the investigations are carried out and a decision is made of charging him or her before a court of law. First, being on suspicion the right to liberty and security of person under Article 29 of the Constitution should not be interfered with arbitrarily to confine the individual to a police station or detention facility. Furthermore, the maxim innocent until proven guilty is one of our key pillars in the administration of justice. 37.The petitioner argued that the investigation of any alleged crime however serious must be done in utmost adherence to the Constitution. Further, Article 244 specifically obligates the 1st respondent to comply with the constitutional standards of human rights and fundamental freedoms. Additionally, to allow evidence deliberately obtained by violation of human rights creates a market for it and condones impunity in the administration of justice and will always be detrimental to the administration of justice. In support reliance was placed in the case of Philomena Mbete Mwilu vs Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested Party) International Commission of Jurist Kenya Chapter (Amicus Curiae) (2019) eKLR where the court stated:“Evidence must be excluded only if it (a) renders the trial unfair; or (b) is otherwise detrimental to the administration of justice. This entails that admitting impugned evidence could damage the administration of justice in ways that would leave the fairness of the trial intact; but where admitting the evidence renders the trial itself unfair, the administration of justice is always damaged. Differently put, evidence must be excluded in all cases where its admission is detrimental to the administration of justice, including the subset of cases where it renders the trial unfair. The provision plainly envisages cases where evidence should be excluded from broad public policy reasons beyond fairness to the individual accused." The 1st & 3rd Respondents Submissions. 38.The respondents cited the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others [2014] eKLR which stated:“Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs Republic (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement." 39.The respondents argued that the arrest and charging of the petitioner in the criminal case cannot be said to be in contravention of Article 28 of the Constitution. Furthermore, the freedom of the petitioner may be curtailed by the sustenance of the criminal case but the same is within the law and cannot be said to be in violation of Article 29 of the Constitution. 40.Regarding the right to be presented in court within 24 hours of arrest, the respondents relied on the case of Kariuki vs Director of Public Prosecutions & 3 Others; Wangila & 2 Others (Interested Parties) (Petition E240 of 2022) [2024] KEHC 834 (KLR) where the court stated:-“When considering the question of violation or otherwise of the petitioner’s rights and fundamental freedoms under the Bill of Rights, arising from the allegation of failure to present him in court within the constitutional timelines, this Court must exercise caution in making any pronouncements at this stage. This issue is best raised in the trial court which will then make a determination on the same and the effect thereof on the proceedings before it. Any finding by this Court on the issue at this stage will be prejudicial to the pending proceedings in the criminal case and eventual outcome." 41.The respondents argued that the issue of the manner in which the evidence that the prosecution intends to rely on was obtained is immaterial as the petitioner will be accorded an opportunity before the trial court to adduce and challenge the evidence. Further the statements recorded by the petitioner under caution have not in any way been relied on as a confession or evidence in the criminal trial. The respondent further submitted that the 1st respondent undertook extensive investigations into the matter and recorded statements from various witnesses as is required by law before submitting the file to the 3rd respondent for directions and advice. The respondents argued that the criminal justice system is a process anchored in the constitution and the law and arresting and charging of persons on account of criminal culpability is part of the system. In support reliance was placed in the decision of Republic vs Service & 2 Others; Resilient Investments Limited & 3 Others (Interested Party); Limited (ex parte) (Judicial Review Application E037 of 2021) [2022] KEHC 43 (KLR) where Mativo J (as he then was) stated:-“The legislative intent in that the investigative officer records statements of persons acquainted with the facts of the case promptly to preserve the best evidence and to check any manipulation on the part of witnesses. It is presumed that spontaneity ensures the truth of details of incident and participants therein and delay generally occasions manipulations and colouring. Therefore, the investigating officers are required to record statements of persons acquainted with the facts promptly and failure to do so is a serious matter." 42.The respondents asserted that the decision to charge the Petitioner was made by the 3rd respondent upon consideration of the available evidence and the petitioner has not shown how the 1st respondent breached Article 157(11) of the Constitution in instituting the impugned criminal proceedings. Further reliance was placed on the case of Republic vs Director of Public Prosecution & 2 Others ex parte Francis Njakwe Maina & Another [2015] eKLR where it was observed that the court ought not to usurp the constitutional mandate of the Director of Prosecutions to undertake the prosecution in exercise of the discretion conferred upon the said office. The respondents further argued that the DPP derives its prosecutorial power from the Constitution and the ODPP Act. The respondents cited the case of Martin Muswanya Nyakiamo vs Director of Public Prosecution & 2 Others; Charles Ogega Ongwae & 5 Others (Interested Parties) [2022] eKLR where the court held:-“Whereas the petitioners have a right not to be subjected to an illegal and/or unwarranted criminal process, the DPP is also under a public duty to ensure that offences are prosecuted and those culpable attended to as the law requires. That is the balance created by the law and which this Court is called upon to serious undertake. In fact, that is the essence of the rule of law." 43.The respondents cited Article 157(11) of the Constitution and submitted that the petitioner did not demonstrate that the decision to prosecute him was against public interest; does not further interests of the administration of justice or that it is an abuse of the legal process. Further, the respondents relied on the case of Kuria & 3 Others vs Attorney General [2002] 2 KLR 69 and argued that the court has the power and duty to prohibit continuation of criminal prosecution if extraneous matters divorced from the goals of justice, guide their instigation and that a stay by an order of prohibition should be granted where compelling an accused to stand trial would violate the fundamental principles of justice. 44.Further reliance was placed in Director of Pubic Prosecution vs Praxidis Namoni Saisi & 2 Others [2020] eKLR where the Court of Appeal stated:-“The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R/Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion." 45.On the prayer for damages, the respondents referred to the case of Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR where the court held that:-“The primary purpose of a constitutional remedy is not compensating for punitive but is to vindicate the rights violated to prevent or defer any future infringements. 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 others, an award of reasonable damages may be called for in addition to the declaration." 46.The respondents argued that the petitioner has not satisfied the threshold that would persuade he court to exercise its judicial review jurisdiction and halt the criminal proceedings in the magistrate’s court. Neither has the petitioner demonstrated that his rights and freedoms were violated to warrant the award of compensation in form of damages. The 2nd Respondent’s Submissions 47.The 2nd respondent submitted that it has a constitutional mandate under Article 156(4) of the Constitution as well as Section 5 of the Office of the Attorney General Act which functions do not include exercising of supervisory powers over the 1st and 3rd respondents and there is no allegations made against it hence it has no business being dragged in the instant Petition. The 2nd respondent further submitted that the DPP is constitutionally mandated to institute and undertake criminal proceedings against any person before any court in respect of any offence and the DPP does not require the consent of any person or authority in exercising its mandate. 48.The 2nd respondent cited that case of Thuita Mwangi & 2 Others vs Ethics & Anti Corruption Commission & 3 Others (no citation given) and Republic vs Commissioner of Police & Another ex parte Michael Monari & Another (no citation given) whereby the court addressed the matters germane to the mandate of the police to mount investigations and stated that: -“The police have a duty to investigate on (sic) any complaint once a complaint is made. Indeed, the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene." 49.On the allegation by the petitioner on the illegally obtained evidence, the 2nd respondent asserted that the determination of the question whether to exclude illegally obtained evidence on the basis that it will render the trial unfair is a matter within the jurisdiction of the trial court. 50.The 2nd respondent argued that pursuant to Section 21 of the Criminal Procedure Code, Section 10 of the National Police Service Act and Chapter 15 of the National Police Service Standing Orders, the manner of arrest of the petitioner was in accordance with the law and thus did not subject him to humiliation or embarrassment. The 2nd respondent further argued that the petition has no merit as it lacks precision as to the alleged rights that is infringed and how it was infringed. Reliance was placed in the case of Rheir Shipping Co. SA vs Edmunds [1955] IWLR 948 at 955 where Lord Bravin opined that “No judge likes to decide a case on the burden of proof if he can legitimately avoid having to do so.” Similar reliance was placed in the case of Hellen Wangari Wangechi vs Carumera Muthini Gathua (2005) eKLR where Mativo J. (as he then was) stated:-“Whether one likes it or not, the legal burden of proof is consciously, or unconsciously the test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone PTE Ltd vs Smith & associates Far East Ltd (2007) 4SLR (R) 855 at 59: ‘The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.’ Analysis and Determination 51.Having regard to the pleadings and submissions of all the parties, this Honourable Court distils the following to be the key issues for determination:SUBPARA a.Whether the petition meets the threshold of pleading a constitutional petition.b.Whether the petitioner’s rights under Articles 28, 29(c), (d), (e) and (f), 31, 49(1)(a)(i) &(ii), (b), (c), (d) & (f) and 50(4) of the Constitution were violated.c.Whether the petitioner is entitled to the orders sought. Whether the petition meets the threshold of pleading a constitutional petition. 52.A cardinal requirement for pleading a constitutional Petition is that it must clearly identify the specific provisions of the Constitution the Petitioner alleges were violated by the Respondents and also provide the facts that detail the manner the violations happened. This requirement was articulated in the cerebrated case of Anarita Karimi Njeru v R 1979 eKLR, where the Court held as follows:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 53.The principle restated by the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:“…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements…” 54.The instant Petition is predicated on violation of Articles 28, 29(c), (d), (e) and (f), 31, 49(1)(a)(i) &(ii), (b), (c), (d) & (f) and 50(4). The Petitioner has pleaded the facts explaining the manner those rights were allegedly violated by the Respondents including but not limited to the 1st respondent arresting him and failing to inform him of the reason for his arrest, taking away his phone, being held in the boot of the police officer’s vehicle, torturing him, failing to book him in a police station, failing to be present him before a court of law within twenty four hours and obtaining evidence in a manner that violated his rights as enshrined under Articles 28, 29 and 49 of the Constitution to be used in MCCR 361/2023. It is therefore my considered view that the petition sufficiently satisfies the threshold test of pleading constitutional petitions. Whether the petitioner’s rights under Articles28, 29(c), (d), (e) and (f), 31, 49(1)(a)(i) &(ii), (b), (c), (d) & (f) and 50(4) of the Constitution were violated. 55.The petitioner has argued that his rights under Articles 28, 29(c), (d), (e) and (f), 31, 49(1)(a)(i) &(ii), (b), (c), (d) & (f) and 50(4) of the Constitution were infringed. 56.One of the main grievances by the Petitioner is that he was not presented before court within twenty-four hours upon his arrest. 57.Article 49(f) of the Constitution provides that an arrested person must be taken to court within twenty=four hours of their arrest. In the case of Lucas Omoto Wamari vs Attorney General & Another (2014) eKLR, the court referring to that prescribed period held as follows:“To support this argument counsel relied on the decision of Raditshego Godfrey Mashilo and Minister of Police vs Jacobus Michael Prinsloo (2012) ZACSA 146 where the Supreme Court of Appeal in South Africa held that where the law prescribed the out limit for detention, the duty was on the police to bring him to court as soon as possible without waiting for the time to lapse. 58.The purpose for which that restricted period was set out in the Constitution was discussed in the case of Hussein Abdillahi Ndei Nyambu vs Inspector General of Police & Another (2014) eKLR where the court held-“Thus there is a violation of the constitution when a person is held beyond the 24 hours irrespective of the reason. In Salim Kofia Chivui vs Republic Nairobi Petition No. 256 of 2011 (2012) eKLR the court stated that, “The tenor and effect of these provisions is to protect any person in Kenya from unwarranted arrest and detention for any period over twenty four hours or for the period necessary to secure his production in court of the next available date. In any case any detention beyond 24 hours must be authorized by court as provided by Article 49(1)(f), once the person’s attendance has been secured within the 24 hours, the court may order the person released or may release the person pending charge or trial on bail or bond unless there are compelling. 59.In the present case the petitioner contends that he was arrested on 3rd May 2023 which fell on a Wednesday and was in the custody of police officers until 8th May 2023. The 1st respondent states that the petitioner was arrested on 3rd May 2023 and willingly led the officers in the identification and arrest of three more suspects on 4th and 5th May 2023 then he was booked at Kileleshwa Police Station on 5th May 2023 vide OB No. 21/05/05/23. He was then bailed out on cash bail of Kshs. 100,000/- on 8th May 2023 from Kilimani Police Station and continued to report to the investigative agencies daily until 22nd May 2023 when he was arraigned before the Chief Magistrate’s Court at Milimani Nairobi. 60.My considered view is that Criminal Case MCCR E361/2023 is actively ongoing before the Trial court. The specific issue of whether the Petitioner was arraigned within the 24-hour period as provided in Article 49 (1) (h) of the Constitution, can, and should be raised with the Trial Court which under Article 159 (1) of the Constitution has a constitutional obligation under Article 159 (2) (e ) ensure the purposes and principles of the Constitution are protected and promoted and in that regard has a duty to assess the effect of that grievance on the overall fairness of the trial before it. Consequently, this Court must exercise judicial restraint and avoid making definitive finding, which could prejudice or pre-empt the ongoing criminal proceedings before the Trial Court. 61.The other fundamental issue raised by the Petitioner was that, in violation of Article 50 (4) of the Constitution, he was tortured so as to provide information to be used in the criminal case against him. Article 50 (4) of the Constitution provides:“Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.” 62.In my view, this is a factual issue which would most appropriately be addressed at the point when such evidence is tendered during trial. The Trial Court would be best placed to inquire into the specific circumstances, weigh and determine the admissibility of such evidence or otherwise. A similar position was reached by the Court in Meixner & Another v Attorney General [2005]2 KLR where it held thus:“It is the trial court which is best equipped to deal with the quality and sufficiency of the evidence gathered to support the charge. It would be a subversion of the law regulating criminal trials if the judicial review court was to usurp the function of a trial court.” 63.In the overall analysis therefore, this Honourable Court finds that the instant Petition lacks merit. The upshot is that it is hereby dismissed. 64.I make no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH JUNE, 2026.………………………………………L N MUGAMBIJUDGE