https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12717

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **PETITION NO. E013 OF 2026** RODGERS MALCOM OPONDO….……………………............PETITIONER VERSUS DIRECTOR OF PUBLIC PROSECUTIONS………………...…1ST RESPONDENT INSPECTOR GENERAL OF POLICE………………………...2ND RESPONDENT DIRECTORATE OF CRIMINAL INVESTIGATION………...3RD RESPONDENT **JUDGEMENT.** 1. The Petitioner filed the present Petition dated 29th June 2026. He states that he was jointly charged with another person in Kibera MCCR No. 116 of 2020 with creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95 of the Penal Code. He pleaded guilty on 9th December 2020 and was discharged under section 35 of the Penal Code by Hon. E. Boke, the trial court having noted that he was a first offender and had been in custody for approximately one year, which period was deemed sufficient punishment. 2. The Petitioner contends that, notwithstanding his discharge, the 3rd Respondent has continued to retain his fingerprints and other personal data in its criminal records database, with the result that his Police Clearance Certificate continues to reflect the offence for which he was discharged. 3. It is his case that such retention contravenes section 55(4) of the National Police Service Act, which requires the destruction or surrender of fingerprints, photographs and other identification records where a person has been discharged or acquitted and has not previously been convicted of an offence punishable by imprisonment. 4. The Petitioner further contends that the continued retention and disclosure of the records violates his rights under Articles 27, 28, 35(2), 39(2) and 41 of the Constitution. He alleges that the record has subjected him to discrimination, stigma and adverse social treatment, portraying him as a person of criminal character despite his discharge. He further states that the record has adversely affected his ability to secure employment and travel outside the country. 5. In his Supporting Affidavit, the Petitioner reiterates that the continued retention of the record has prejudiced him in employment, travel and his social interactions. He states that he was advised by his advocates, which advice he believes to be true, that following his discharge, the 3rd Respondent ought to have destroyed or removed his fingerprints and related records from its criminal database. 6. The Petitioner consequently seeks declarations that the continued retention of his fingerprints and the recording of the discharged offence contravene section 55(4) of the National Police Service Act and violate his constitutional rights. He further seeks orders for the expungement of his name, fingerprints and other personal data from the criminal records register and the issuance of a Police Clearance Certificate without reference to the discharged offence. 7. The Respondents neither filed a response nor adduced evidence controverting the Petitioner's evidence that he was discharged under section 35 of the Penal Code, was a first offender, and that his fingerprints and other personal data remain in the criminal records register and are reflected in his Police Clearance Certificate. That evidence is therefore uncontroverted. 8. The sole issue for determination is whether the continued retention and disclosure of the Petitioner's fingerprints and personal data is lawful. Section 55(4) of the National Police Service Act provides: **“Subject to subsection (1), if a person is not charged with an offence punishable by imprisonment or is discharged or acquitted by a court, and has not previously been convicted of an offence so punishable, all records of such measurements, photographs, footprints and casts thereof, palm-prints and fingerprints and any negatives and copies of such photographs or of photographs of such footprints, palm-prints and finger-prints shall immediately be destroyed or handed over to such person.”** 1. The language of the provision is mandatory. The Petitioner was discharged and there is no evidence of any previous conviction. The continued retention of his fingerprints and related records is therefore contrary to section 55(4) of the Act. 2. Article 35(2) of the Constitution further provides: **“Every person has the right to the correction or deletion of untrue or misleading information that affects the person.”** 1. The Court must, however, bear in mind that a party seeking relief under Article 35(2) must demonstrate that he sought correction or deletion of the information and that the request was declined. In **Okiya Omtatah Okoiti v Attorney General & 2 others [2012] eKLR,** the Court emphasised the need to establish such a request before invoking the Court's jurisdiction under the provision. 2. In the present case, the Petitioner has not demonstrated that he first sought deletion or correction of the impugned record from the Respondents and that such request was refused. That omission does not, however, cure the Respondents' continued retention of records which section 55(4) expressly requires to be destroyed or surrendered. 3. The continued reflection of the discharged offence in the Petitioner's Police Clearance Certificate is, moreover, misleading in effect, as it places him in the position of a convicted person when the proceedings resulted in a discharge. In **Humphrey Kariuki Ndegwa & 2 others v Standard Group Limited & 8 others [2018] KEHC 9457 (KLR),** the Court recognised that Article 35(2) is concerned with information that is untrue or misleading and which affects the person concerned. 4. The Petitioner's case is further supported by **Kimathi v Inspector General of the Police Service & 5 others [2026] KEHC 2918 (KLR),** where the Court, in circumstances materially similar to the present case, considered section 55(4) and ordered the expungement of the Petitioner's name, fingerprints and other personal data, together with the issuance of a certificate of good conduct without reference to the impugned criminal record. The Court observed: *“It is thus my opinion that by maintaining the record of the petitioner, is not in his best interest and his fundamental rights as set out in this petition have been violated.”* 1. I am satisfied that the Petitioner has established, on a balance of probabilities, that the continued retention of his fingerprints and personal data, and the reflection of the discharged offence in his Police Clearance Certificate, contravene section 55(4) of the National Police Service Act and violate his rights under Articles 27, 28, 35(2), 39(2) and 41 of the Constitution. 2. Although the Petition succeeds, the Petitioner did not demonstrate that he had first sought deletion of the impugned record from the Respondents and they refused before approaching the Court. In the circumstances, I consider it just that each party bears its own costs. 3. Accordingly, the Petition succeeds and the following orders are hereby issued: 4. A declaration that the retention of the Petitioner's fingerprints and other personal data in the 3rd Respondent's database after his discharge was contrary to section 55(4) of the National Police Service Act. 5. A declaration that the retention of the said records and the subsequent reflection of the discharged offence in the Petitioner's Police Clearance Certificate violated his rights under Articles 27, 28, 35(2), 39(2) and 41 of the Constitution. 6. An order directing the 3rd Respondent to expunge the Petitioner's name, fingerprints and other personal data relating to Kibera MCCR No. 116 of 2020 from the criminal records register. 7. An order directing the 2nd and 3rd Respondents to issue the Petitioner with a Police Clearance Certificate without reference to the said offence. 8. Each party shall bear its own costs. Orders accordingly. **Judgement dated and delivered virtually this 6th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Mr. Gitonga for the Petitioner Mr. Mutuma for the Respondents Karimi Court Assistant.