https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9412

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E 526 OF 2022** **ALAN OMONDI……………………………………………….…PETITIONER** VERSUS **THE INPECTOR GENERAL OF THE** **NATIONAL POLICE SERVICE………………………...…1STRESPONDENT** **OFFICE OF THE DIRECTOR OF** **PUBLIC PROSECUTIONS………………………………...2NDRESPONDENT** **THE HON. ATTORNEY GENERAL …………………....3RDRESPONDENT** AND **INDEPENDENT MEDICO-LEGAL UNIT** **(IMLU)……………………………………………… IST INTERESTED PARTY** **INDEPENDENT POLICING** **OVERSIGHT AUTHORITY (IPOA)……………..2NDINTERESTED PARTY** **JUDGMENT** **SUMMARY OF PETITIONER’S PLEADINGS** 1. The Petitioner, a university student at JKUAT at the material time, lodged this Petition on 22nd November 2022 alleging grave violations of his constitutional rights arising from an incident on 11 November 2019 in which officers of the National Police Service subjected him to severe physical assault. He states that uniformed police officers beat, kicked, and restrained him in degrading positions, conduct widely captured on video and disseminated through local and international media. He contends that the assault, his subsequent detention without charge, and the denial of medical attention constituted a wholesale departure from the constitutional and statutory obligations governing police conduct. 2. The Petition is anchored on Articles 25, 28, 29, 43, 49 and 50 of the Constitution, which guarantee freedom from torture and cruel, inhuman or degrading treatment, the right to dignity, the right to security of the person, the right to the highest attainable standard of health, and the right not to be arbitrarily arrested or detained. The Petitioner avers that each of these rights was violated when he was violently arrested without cause, beaten while in custody, denied emergency medical care, and later released without being booked or charged. He asserts that the conduct of the officers was neither justified by law nor consistent with the constitutional standards binding on the National Police Service under Article 244 of the Constitution of Kenya. The Petitioner maintains that the brutality he endured reflects a broader pattern of unconstitutional policing practices that the Court must not condone. 3. The Petitioner further states that the Office of the Director of Public Prosecutions acknowledged that there was sufficient evidence to support charges of assault causing actual bodily harm against the implicated officers. The ODPP also noted that administrative action had been taken by the 1st Respondent and, on that basis, recommended that the matter be resolved through diversion. The Petitioner is aggrieved that, despite that recommendation and subsequent follow-up communication from his advocate to the 1st and 2nd Respondents, no response was received, and no meaningful action was taken. No steps were taken either to implement the proposed diversion process or to prosecute the culpable police officers, leaving the Petitioner without an effective remedy. 4. The assessment reports by Dr. Violet Tamu corroborate the averments of the Petitioner that he suffered severe physical and psychological harm following assault by police officers during the 11 November 2019 incident, presenting with significant posttraumatic stress symptoms, moderate physical pain, anxiety, and depressive features. The report notes intrusive memories, hypervigilance, fear of police, social withdrawal, sleep disturbance, migraines, and reduced functioning in daily activities, alongside emotional distress linked to public exposure of the incident. Despite strong family support, the assessment concludes that the Petitioner continues to experience substantial trauma related impairment requiring ongoing medical care, psychological therapy, and structured interventions including cognitive restructuring, trauma focused counselling, and spiritual and social support to restore functioning. **SUMMARY OF 2ND RESPONDENT’S PLEADINGS** 1. The 2nd Respondent opposes the Petition and has filed affidavit by Kinuthia Njenga sworn on 16th October 2025. He avers that, upon reviewing IPOA’s (the Ist Interested Party) investigation file, it concurred with the Authority’s assessment that the conduct of the identified officers met the threshold for a charge of assault causing actual bodily harm under section 251 of the Penal Code. Yet, invoking the constitutional values embedded in Article 159, the ODPP determined that the matter was suitable for diversion, given the administrative sanctions already initiated against the implicated officers. He asserts that this exercise of prosecutorial discretion was neither arbitrary nor inattentive to public interest; rather, it was considered judgment made within the ODPP’s constitutional authority under Article 157. 2. He avers the petitioner’s constitutional claim is procedurally misplaced, arguing that once he elected to pursue a diversion agreement with the National Police Service, he could not simultaneously fault the ODPP for acting within the very framework he had engaged. The affidavit stresses that the petitioner retains the statutory right to seek review of the diversion decision under section 5(4)(e) of the ODPP Act, and that no evidence has been tendered to demonstrate bad faith, caprice, or abuse of power sufficient to trigger constitutional intervention. He therefore maintains that the conduct of the 2nd Respondent neither infringed the petitioner’s rights under Articles 28 and 29 nor obstructed justice, but instead reflected a legitimate prosecutorial choice consistent with the Constitution’s preference for proportionate, restorative, and context sensitive resolution of criminal matters **SUMMARY OF THE 3RD RESPONDENT’S PLEADINGS** 1. In opposing the Petition, the 3rd respondent filed grounds of opposition dated 21st December 2022. It is argued that the petition falters at the threshold: it neither articulates with the requisite clarity the specific constitutional violations alleged nor establishes any factual or legal basis upon which liability may be attributed to the Attorney General. The Grounds of Opposition assert that the petition discloses no actionable claim against the 3rd Respondent, that the remedies sought are untenable as framed, and that the petitioner has not demonstrated how the Attorney General, whose role is principally representational, bears responsibility for the impugned conduct. Emphasizing that fundamental rights operate within a constitutional framework that balances individual claims against broader societal and public interest considerations, the 3rd Respondent urges dismissal of the petition, contending that the pleadings fall short of the precision required and fail to disclose any violation attributable to the office. **SUMMARY OF THE 2ND INTERESTED PARTY’S PLEADINGS** 1. The 2nd Interested Party vide affidavit sworn on 27th October 2023 by Jackline Atuti adopts a neutral stance. She avers that the Authority, acting on its own motion after a viral video surfaced, undertook a full statutory inquiry into the 11 November 2019 assault of the petitioner, interviewing witnesses, collecting evidence, and prepared a report dated 24th October 2023 in which they recommended the prosecution of the culpable officers who had been identified. 2. The matter proceeded by *viva voce* evidence. 3. **PW1- Allan Omondi, Petitioner.** In his evidence in Chief, he testified that he was a student at JKUAT at the material time. On 22 November 2019, he was returning to the Hostel from nearby shops, four police officers accosted him without inquiry or warning and immediately subjected him to a sustained assault using batons, kicks, and blows. There was an ongoing student's protest concerning insecurity was underway; he stated that he was not part of it. He was thereafter placed in a police vehicle, handcuffed to the railing in an awkward position, and further assaulted as the officers drove around, threatening his life and accusing him, on account of his dreadlocks, of belonging to the “Mungiki sector.” 4. He added that he was taken to Juja Police Station, where the beating continued until about 4:30 p.m. He was then placed in a crowded, dirty, poorly ventilated cell. Despite informing the officers that he required an inhaler due to a chest condition, no assistance was provided. He was released later that night after his mother intervened and was taken to AAR Hospital for medical assessment. He subsequently reported the incident to IPOA, which conducted investigations, identified the officer involved, and confirmed that the assault had been captured on camera. He relied on the IPOA report, the AAR medical report, a psychological assessment by IMLU, and further medical documentation from Thika Level 5 Hospital and a maxillofacial surgeon. 5. The Petitioner further testified that IPOA informed him it had forwarded the investigation file to the ODPP, which, by a letter dated 2 June 2021, indicated that there was sufficient evidence to support a charge of assault causing actual bodily harm against the named officers and recommended diversion. He stated that despite this recommendation, no action was taken, and his attempts to pursue compensation through the National Police Service were unsuccessful. He stated that the Inspector General issued a public statement acknowledging the incident; the occurrence was widely covered by the media. He stated that, three years on, he continues to suffer psychological harm, including post‑traumatic stress disorder, intrusive recollections, fear of police officers, and diminished self‑esteem, and seeks justice and accountability to ensure such conduct does not recur. 6. On cross-examination, the Petitioner acknowledged that he was aware of the planned student demonstrations on the material day. He stated that he reported the incident to the police and retained the OB number, though he no longer has the physical document. He testified that he was detained in the police cells with other individuals but had not called any witness to attest to that fact. He confirmed that IMLU prepared a psychological report. He stated that he had no documentation showing that the demonstrations were authorised. Regarding the IPOA report, he confirmed that it identifies an officer using the designation “E1,” which he explained is not a name that could appear on an identity card. He stated that he was the only civilian in the police vehicle and that is no longer under the care of Dr. Violet and is not aware of any police officer having been charged in court. He further confirmed that he never testified against any officer and that the ODPP letter (AO6) does not name any officer, was addressed to the Chief Executive Officer of IPOA, and was not copied to him. 7. He stated that although he followed up with IPOA after the ODPP letter dated 2 June 2021, he has no written correspondence showing any follow-up between that date and when he presented the Petition. 8. **PW2 –Violet Yamu Nthiga**, she is a counselling psychologist and provides trauma counselling, psychosocial support, family and marital therapy, adolescent care, coaching, and training, and works with several human rights organisations. She confirmed filing a witness statement dated 24 October 2023 together with four supporting documents: two IMLU assessments dated 22 November 2019 and 7 February 2022, progress notes dated 17 February 2022, and a short therapy report dated 30 September 2023. She stated that she first met the Petitioner after he was referred by IMLU shortly after the police assault. At that time, he was unable to speak, displayed profound mistrust, and presented with severe anxiety. She testified that he suffered insomnia, hypervigilance, emotional withdrawal, abdominal pain, and persistent fears that he was being monitored or pursued. She noted that he isolated himself at home, struggled to relate to others, and had difficulty preparing for examinations. 9. She stated that although he later showed physical improvement, psychological symptoms remained significant. The February 2022 assessment recorded anxiety at 90%, depression at 86%, and posttraumatic disturbance at 66%, with intrusive images being particularly prominent. She testified that the incident distorted his sense of identity, leaving him feeling criminalised, inadequate, and unable to seek employment after completing school. She referred him to IMLU doctors, supported his physical recovery, and facilitated therapeutic materials, including masculinity literature and spiritual resources. She stated that he eventually enrolled in a data‑science course and undertakes some online work, but continues to struggle with insomnia, emotional distance, and triggers linked to the assault. She observed that he was visibly uncomfortable when his reports were referred to in court and expressed hope that the proceedings would help him regain stability and dignity. 10. On cross examination she defended her qualifications as a Doctor of Psychology. The Petitioner was referred to her. She collected factual history from the Petitioner. For purposes of the assessment, she relied on the Istanbul Protocol. 11. **2PW-1 Jackline Atuti** She is a Senior Investigating Officer with the Independent Policing Oversight Authority (IPOA) She testified that, IPOA became aware of a viral video showing a man being assaulted by four individuals who appeared to be police officers. IPOA responded and commenced investigations, identifying the victim as the Petitioner, Allan Omondi. She confirmed that IPOA recorded witness statements, collected relevant documentary evidence, and registered the complaint under reference IPOA/CMU/002960/2019. Upon completing investigations, IPOA prepared a report and forwarded the investigation file to the Office of the Director of Public Prosecutions (ODPP) through a letter dated 22 March 2021. 12. She testified that after reviewing the file, the ODPP issued directions recommending that the matter proceeds by way of diversion. She stated that IPOA has not received any further communication from the ODPP following that recommendation. IPOA’s role in the matter concluded upon forwarding the investigation file and receiving the diversion directive. 13. On cross examination she indicated that IPOA commenced investigations after the video went viral. She recorded witness statements. The outcome of IPOA investigations was compiled into a report. The report was based on witness statements. The report was forwarded to the ODPP. The report only identified P C Boniface Muthama as one of the culpable officers. 14. At the conclusion of the hearing, the parties submitted written submissions. **SUMMARY OF THE PETITIONER’S SUBMISSIONS.** 1. The petitioner’s submissions are dated 22nd October 2025. He anchors his legal claims in the Bill of Rights, asserting violations of Articles 25(a), 28, 29, 43, 49 and 50 of the Constitution. He submits that the assault constituted torture, cruel and degrading treatment, arbitrary detention, and a violation of dignity. He invokes international instruments, including the ICCPR, ACHPR, CAT, the 1979 Code of Conduct for Law Enforcement Officials, and the 1990 Basic Principles on the Use of Force and Firearms, to demonstrate that the police conduct fell far below constitutional and global policing standards. The submissions further rely on General Comment No. 36 (2018) to argue that the right to life encompasses the right to live free from life-threatening state violence. 2. He submits that the diversion was neither transparent nor effective, and that years later no diversion agreement was ever executed. He relies on **Rashid Odhiambo Aloggoh & 245 others vs Haco Industries Ltd, Civil Appeal No. 110 of 2001**, to assert that where constitutional violations are alleged, the High Court has a duty to investigate and provide a remedy. He further cites **Night Rose Cosmetics [1972] Ltd v Nairobi County Government & 2 others [2018] eKLR** to reinforce that constitutional enforcement lies squarely within the jurisdiction of this Court. 3. The Petitioner avers that his right to dignity was violated and relies on the decision of the South African Constitutional Court in, **Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others**; **Thomas and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000)** 4. It is submitted on the Authority of **Attorney General & another v Randu Nzai Ruwa & 2 others [2016] eKLR** that the 1st Respondent has an Obligation to respect and observe human rights in the conduct of its mandate. 5. Finally, it is submitted that the Court in ordering the appropriate relief should be guided by precedent. Reference is made to the decisions in **Edward Akong'o Oyugi & 2 others v Attorney General [2019] KEHC 10211 (KLR); MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) (Constitutional) Petition 347 of 2015) [2017] KEHC 1496 (KLR) (Constitutional and Human Rights) (18 December 2017) (Judgment) and Muchai & 5 others v Attorney General (Civil Appeal 524 of 2019) [2025] KECA 525 (KLR) (21 March 2025) (Judgment)** as a guide on the appropriate order on damages. **SUMMARY OF THE 2ND RESPONDENT’S SUBMISSIONS** 1. The 2nd Respondent’s Submissions are dated 22nd October 2025. It is submitted that the Petition having failed the precision test as clarified in **Anarita Karimi -Versus- Republic (No.1) (1979) 1 KLR 154** and reaffirmed in **Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR**. must fail. In particular, the Petitioner has neither pleaded nor demonstrated with specificity how the ODPP violated any of his constitutional rights. The 2nd respondent submits that diversion is a lawful alternative mechanism, not a refusal to prosecute, and that the Petitioner himself initiated engagement with the National Police Service toward a diversion agreement. It therefore contends that the Petition improperly seeks to compel a prosecutorial outcome barred by Article 157(10), that no evidence of bad faith, caprice, or abuse of power has been shown, and that the Petitioner’s grievances, being grounded in police conduct rather than prosecutorial action, cannot sustain constitutional relief against the 2nd Respondent **SUMMARY OF THE IST AND 3RD RESPONDENTS’ SUBMISSIONS** 1. In their submissions dated 20th April 2026, the 1st and 3rd Respondents argue that the Petition is procedurally and substantively defective, whilst relying on the decision in A**narita Karimi Njeru v The Republic (1976–1980) 1 KLR 1272 and its reaffirmation in Trusted Society of Human Rights Alliance v Attorney General & 2 others**; **Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR)**. It is argued that the Petitioner has not pleaded with the constitutional precision required to sustain a right-based claim. It is submitted that the Petition merely recites allegations of “police brutality” and “failure to prosecute” without identifying the specific acts or omissions of the Inspector General or the Attorney General that allegedly infringed the Constitution. 2. They emphasize that the power to prosecute lies exclusively with the ODPP under Article 157, as affirmed in **Muli v Inspector General of National Police Service & 3 others; Director of Public Prosecutions (Interested Party) [2024] KEHC 6881 (KLR)**, and that neither the 1st nor the 3rd Respondent can be held vicariously liable for the independent constitutional discretion of the ODPP, and that the Attorney General, being merely the State’s legal representative, cannot be faulted absent a demonstrated constitutional breach. 3. The Respondents reiterate that electronic evidence having been excluded in accordance with the principles articulated in **County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] eKLR and Ogembo v Yongo [2024] KEHC 15763 (KLR)**, the petition lacks evidentiary feet on which it stands and must fail. 4. On remedies, they maintain that the prayer for mandamus to compel prosecution is untenable under Article 157(10), and rely on **Wafula v Director of Public Prosecutions; Ethics and Anti****Corruption Commission & 2 others (Interested Parties) [2025] KESC 46 (KLR)** to argue that courts may not intrude into prosecutorial discretion absent proof of bad faith or irrationality. 5. As to damages, they invoke **Njuguna Githiru v Attorney General [2020] KECA 929 (KLR) and Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)** to emphasize that constitutional remedies must be rational, proportionate, and directed at vindicating rights rather than punishing the State. They therefore urge the Court to dismiss the Petition for lack of precision, lack of a cause of action against them, failure to comply with evidentiary rules, and failure to demonstrate any constitutional violation attributable to the 1st or 3rd Respondent **SUMMARY OF THE 2ND INTERESTED PARTY'S SUBMISSIONS** 1. In its submissions dated 6th March 2026, the 2nd Interested Party maintains that the Petition discloses no cause of action against it, emphasizing, consistent with the precision requirement in **Anarita Karimi Njeru (Supra)**, that the petitioner has neither pleaded nor proved any violation attributable to IPOA. IPOA stresses that it neither arrests, detains, nor prosecutes suspects, and therefore cannot bear responsibility for the police conduct complained of or for the ODPP’s subsequent prosecutorial decisions. Citing **Petition No. 45 of 2017, Maya Duty Free Limited v Hon. Attorney General & 3 Others,** and prays that the petition be dismissed as against it **ANALYSIS AND DETERMINATION** 1. Having considered thepleadings, evidence on record and submissions filed, I garner that the issues for determination are- 1. Whether the Petition has merit, and the Petitioner entitled to the orders sought? 2. What is the appropriate order on costs? 2. The respondent contend that the Petition fails the precision requirement in relation to Constitutional Petitions. Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 requires that a Petition disclose the following- 1. The petitioner’s name and address 2. The facts relied upon 3. The constitutional provision violated 4. The nature of the injury caused or likely to be caused to the Petitioner or the person in whose name the petitioner had instituted the suit, or in a public interest case to the public, class of persons or community. 3. The rule as framed captures and provides the statutory grounding for the precision test for constitutional Petitions, first articulated in the celebrated decision in **Anarita Karimi Njeru case** **(Supra)** where the court pronounced- **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**. 1. The purpose of this requirement is to ensure that both the Court and the Respondents can clearly understand the nature of the complaint and the relief sought. In **Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR)** the Court clarified that whereas parties would not be penalized for not average or below average drafting skills, ultimately the petition must be coherent in its expression of the issues that the Court is required to determine. The Court had this to say- **[39] We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point** 1. Viewed through this constitutional lens, the Petition presents a coherent narrative of alleged rights violations. The Petitioner anchors his claim on the alleged contravention of Articles 25(a), 28, 29(c), (d), (e) and (f), 43, 49(1)(a) and (i), and 50(2)(b) of the Constitution, provisions that speak to the dignity, security, and fundamental protections owed to every person within the Republic. 2. At Part E, the Petitioner sets out, with appreciable detail, the specific acts attributed to officers of the 1st Respondent, describing how those acts, in his view, crossed constitutional boundaries. Part F then delineates the reliefs sought; declarations that his rights were violated by agents of the 1st Respondent, and a request for an order of mandamus compelling the 2nd Respondent to initiate prosecution against the culpable officers. It is my finding therefore that as drafted the Petition does meet the precision test. 3. The next issue is whether the Petitioner has proved his claim. The matter proceeded through *viva voce* testimony, and I have considered the full evidentiary record with care. On this point, one fact stands out: the Petitioner’s assertion that he was assaulted by police officers on 11 November 2019 is not credibly disputed. Even without the admission of electronic footage, the evidentiary trail is unmistakable. The officers identified at the scene were subsequently interdicted, and the 2nd Respondent, after reviewing the investigative file, concluded that the evidence could sustain a charge of assault, though ultimately recommending that the matter proceed by way of diversion in light of the surrounding circumstances. That conclusion did not arise in isolation. The 2nd Interested Party, through its own independent inquiry, corroborated the Petitioner’s account. Indeed, it was their investigative report that formed the foundation of the 2nd Respondent’s determination. Taken together, these strands of evidence present a consistent and mutually reinforcing narrative of what transpired. 4. The Respondents argue that the conduct of the police officers, even if established, does not attain the threshold of a constitutional violation. In their view, the Petitioner’s grievance is more appropriately addressed within the realms of tort or through the criminal process for assault. That submission, however, must be examined against the constitutional standards that govern the exercise of State power. Where allegations are made that officers of the State acted in a manner inconsistent with the guarantees of dignity, security of the person, and freedom from cruel or degrading treatment, the Court is obliged to interrogate whether the conduct complained of implicates the Constitution. The mere availability of tortious or criminal remedies does not, without more, diminish the constitutional inquiry. 5. With the promulgation of the Constitution of Kenya, 2010, there was a momentous shift in the manner in which State power is exercised and experienced. The Constitution ushered in a new normative order, one that demands accountability, transparency, and fidelity to constitutional values from all organs of the State. Among the institutions specifically earmarked for transformation was the National Police Service, which evolved from the former Kenya Police Force into a service‑oriented body grounded in constitutional discipline. Article 244 sets out the principles that guide the Service, while Article 239 situates it within the broader national security framework. In addition, Article 22 empowers every person to seek redress when State actors, including police officers, act in a manner inconsistent with the Constitution. These provisions collectively define the operational boundaries of the National Police Service and underscore the constitutional expectations placed upon its officers. 6. When one weighs the constitutional vision against the conduct of the police officers on the material day, the contrast is stark. The Petitioner recounts that he was ambushed and violently assaulted while simply stepping out to purchase eggs for his lunch. He never obtained the eggs; instead, he was subjected to force, sustained injuries, and was thereafter taken to the police station, where he remained in custody despite his condition until his mother arrived to secure his release. Such conduct, viewed against the standards set by the Constitution and the obligations imposed upon the National Police Service, reflects a departure from the discipline, restraint, and respect for human dignity that the constitutional order demands. 7. These facts are neither contested nor credibly challenged. Beyond the physical injuries he suffered, the evidence demonstrates that the Petitioner continues to endure emotional and psychological trauma. That harm is compounded by the inertia exhibited by the Office of the Director of Public Prosecutions, whose failure to take decisive action has left the Petitioner without closure and has prolonged the effects of the incident. In the face of such uncontroverted evidence, the Court must assess whether the cumulative impact of the officers’ conduct, and the subsequent institutional inaction, amounts to a violation of the constitutional guarantees invoked. 8. The record shows that the Director of Public Prosecutions determined that the matter should proceed by way of diversion. Following that decision, the Petitioner made repeated follow‑ups with both the Inspector General and the Director of Public Prosecutions, but these efforts yielded no progress. Under the Diversion Policy, the Office of the Director of Public Prosecutions is the custodian of the diversion process. It is that office which approves matters for diversion, prepares and formalizes diversion agreements, and maintains the register of diversion cases. The statutory and policy framework therefore places the responsibility for operationalizing diversion squarely upon the 2nd Respondent. 9. In that context, the attempt by the Office of the Deputy Director to shift responsibility for finalizing the diversion in this matter is not plausible. The inertia exhibited by the 2nd Respondent left the Petitioner without a remedy and, in doing so, compromised his right to equal protection and equal benefit of the law. A diversion decision that is never implemented is, in effect, no decision at all, and the resulting vacuum cannot be reconciled with the constitutional obligations that bind the 2nd Respondent. 10. It is my finding, therefore, that the actions of the police officers on 11 November 2019 amounted to violations of the Petitioner’s constitutional rights. The assault and subsequent detention at the police station infringed his right to human dignity under Article 28, and his right to freedom and security of the person under Article 29, including the right not to be subjected to cruel, inhuman, or degrading treatment. Further, the inertia of the Office of the Director of Public Prosecutions compromised his right of access to justice, a right that lies at the heart of the constitutional order. 11. Having found that the rights of the Petitioner were violated by the actions of the 1st Respondent and the 2nd Respondent, the next question concerns the appropriate reliefs. Constitutional remedies must be fashioned in a manner that vindicates the rights infringed, affirms the constitutional standards breached, and ensures accountability within the institutional structures implicated. 12. The 3rd Respondent is correct in emphasizing the independence of the Office of the Director of Public Prosecutions, an independence firmly safeguarded under Article 157(11) of the Constitution. That constitutional protection ensures that prosecutorial decisions are made free from improper influence, and it is not the role of this Court to overturn or substitute the decision to have the matter proceed by way of diversion rather than prosecution. However, prosecutorial independence does not operate as a shield against constitutional scrutiny. Where the conduct of that office results in an infringement of rights, whether through action or, as in this case, through prolonged inaction, the Court is obligated to prescribe an appropriate remedy. Independence carries constitutional responsibilities, and it does not excuse institutional inertia that undermines the rights of a complainant or leaves a diversion decision suspended in a state of non‑implementation. 13. Having regard to the totality of the circumstances, these are the appropriate orders in this case- 1. A declaration hereby issues that the violent assault and subsequent arrest and detention of the Petitioner by the officers of the 1st respondent occasioned a violation of the right to human dignity, freedom from cruel, inhuman and degrading treatment contrary to Articles 28 and 29 of the Constitution of Kenya, 2010. 2. A declaration that the failure by the 2nd respondent to process the diversion occasioned a violation of the right to access to justice contrary to Article 48 of the Constitution. 3. The Petitioner is awarded the sum of Kshs 8 million for the violation of his rights, payable by the 1st and 2nd Defendants. 4. Costs of the Petition are awarded to the Petitioner payable by the 1st and 2nd Petitioner. It is so ordered **SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026**. **P. M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Ms. Momanyi holding brief for Lusweti for 2nd Interested Party Maatwa Respondents