[2022] KEHC 2534 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

CONSTITUTIONAL PETITION NO. 10 OF 2019

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010

-AND-

IN THE MATTER OF ARTICLES 22, 27, 28, 31, AND 40 OF THE CONSTITUTION OF KENYA, 2010

-AND-

IN THE MATTER OF VIOLATION OF RIGHT TO PRIVACY, TO OWN PROPERTY,

TO PROTECTION OFTHE LAW AND DIGNITY, IN THE MATTER OF

ROBER MWANGI MUGO

-BETWEEN-

ROBERT MWANGI MUGO..............................................................................PETITIONER

-VERSUS-

OCS NYAHURURU POLICE STATION................................................1ST RESPONDENT

THE INSPECTOR GENERAL OF POLICE.........................................2ND RESPONDENT

THE HON. ATTORNEY GENERAL.....................................................3RD RESPONDENT

JUDGMENT

1. By a Petition dated 9th December, 2019, the Petitioner seeks the orders:

(a) A declaration that the 1st and 2nd Respondents’ action of entry into the Petitioner’s house was unconstitutional and/or unlawful.

(b) A declaration that the 1st and 2nd Respondents’ actions of confiscation of the Petitioner’s properties are violation of the Petitioner’s Constitutional rights.

(c) An order for general damages for violation of the Petitioner’s Constitutional rights.

(d) An order directed at the 1st and 2nd Respondent to release the following properties belonging to the Petitioner forthwith:

· 4 CCTV cameras which were mounted around the house and were functional at the time.

· One CCTV monitor.

· One DVR machine (recorder)

· 4 bicycles belonging to the Petitioner’s children.

· One TV set (42 inches).

· One music mixture and player.

· One digital TV decoder.

(e) Cost of the Petition.

(f) Interest on (c) and (e) above from the date of the judgment.

THE CASE ARISES FROM THE FACTS:

2. That on or about the 23rd of August, 2019, the 1st Respondent accompanied by his Deputy and other Police Officers visited a house belonging to the Petitioner’s neighbour for unknown reasons within Mamboleo Estate, Nyahururu.

3. That on his way out from the neighbour’s house, the 1st Respondent and the officers that accompanied him unlawfully gained entry to and/or entered inside a house belonging to the Petitioner without any permission or search warrants and unlawfully confiscated the Petitioner’s properties namely:

(a)4 CCTV Cameras which were mounted around the house and were functional at the time.

(b)One CCTV monitor.

(c)One DVR machine (recorder).

(d)4 bicycles belonging to the Petitioner’s children.

(e)One TV Set (42 inches).

(f)One music mixture and player.

(g)One Digital TV Decoder.

4. These properties were taken in presence of the Petitioner’s children and servant/house caretaker and his pleas to the officers to wait for the owner of the house fell on deaf ears.

5. The Petitioner’s children have been denied the opportunity to play with their bicycles or watch their favorite TV programmes and their best interests thereby undermined.

6. The Petitioner’s security has been compromised as the CCTV cameras mounted around the house were confiscated by the 1st Respondent.

7. The Petitioner is apprehensive that the 1st Respondent and his junior officers confiscated the CCTV Cameras and the recorder to cover up their illegal actions that had been captured by the said cameras.

8. The Petitioner has made may requests to the 1st Respondent to release the subject properties to him on many occasions both verbally and in writing through his lawyers but the 1st Respondent alleges that the properties have been kept under lock and key by an officer who is not at the station currently.

9. The 1st Respondent has no justification at all to continue holding the Petitioner’s properties.

10. The entry of the 1st Respondent and his junior officers to the Petitioner’s house and subsequent confiscation of his property was unlawful, unconstitutional and irregular.

11. The subject properties are valued at approximately Kshs.150,000/-.

12. The Petitioner has not been charged with any offence and the said properties are not exhibits in any criminal proceedings.

13. Same is supported by Petitioner’s affidavit sworn on 9th December, 2019.

14. The Respondents via replying affidavit of IP Martin Gitonga Njogusworn on 18th December, 2020 opposed same petition vide:

(a) The Petitioner has not shown which rights were violated by the Respondents, and to what extent the purported violation (if any) goes.

(b) The Petitioner has not disputed that arrests of suspected bhang peddlers was effected by the officers of the 2nd Respondent led by the 1st Respondent.

(c) The Petitioner is in fact the main suspect in the said syndicate, and has been on the run since the said arrests, and has and continues to avoid arrests to face charges as the other accused persons.

(d) That the rights allegedly to have been violated (which is denied), are not absolute rights not to be limited by operation of law.

(e) The apprehension of the suspects as well as the taking into custody the alleged items as have been enlisted in our Exhibit marked MN – 2 were and are all acts permutable by law to the Respondents on suspicion or apprehension that a crime has or is likely to be committed.

(f) The law also permits officers of the 2nd Respondent to enter any premise known to them, reported to them or suspected to be a harbor for criminal acts, and take any evidence for examination that might aid their prosecution of the suspects so arrested.

15. The matter was canvassed via submissions which parties filed and exchanged.

PETITIONER’S SUBMISSIONS:

16. The petitioner submitted that, the Respondents have admitted to have entered the Petitioner’s house. They also admitted to have taken possession of the property complained of. At the time of entry and seizure of property, they did not have warrants of search. It has not been pleaded that there was no opportunity to get warrants of search.

17. It is submitted that, the Respondents’ claim that the Petitioner should be facing charges of Possession of Narcotics and Psychotropic substances, yet it is not shown what the connection is between a charge of possession of narcotics and the items taken from the accused. For instance, what would be the connection between the children bicycles, TV set and speakers to a charge of possession of Narcotics?

18. It is contended that, the charge sheet produced does not even contain the name of the Petitioner as one of the accused person. There are no warrants of arrest against him. No such charges or warrants have been proved to show that indeed the property of the Petitioner is intended to be used as an exhibit.

19. The Petitioner argues that, he has made both oral and written requests at the police station for the release of the items has not been denied. That means, the Petitioner has even visited the police station when making those oral requests.

20. It is submitted that a demand letter for the release of the items which bears a stamp of the Nyahururu Police Station was issued but the Respondents did not respond to that letter to either state that they intend to use the items as evidence or to request the Petitioner to present himself to the police. They just received the letter and kept quiet. Their claim that those items are exhibits is clearly an afterthought and misplaced.

21. He submitted that, the instance when police can enter a person’s premises without warrant and thereon seize property of a person is provided for under the National Police Service Act Cap 84in Section 57. He relies also on Section 60(1) of same Act.

22. He argues that, the Respondents, have not provided any bases why they could not obtain warrants of search so as to meet the provision of Section 57 (a) aforesaid. The Section requires that there be reasonable cause on the part of a police officer to believe that the delay occasioned by obtaining warrants would prejudice investigation. No such cause has been shown or even pleaded in the affidavit.

23. In this instance, there were no warrants of arrest against the Petitioner. Secondly, it has not been shown or even pleaded that the police demanded to enter the house on free entry or that they gave notification to the Petitioner or any of the occupants including the caretaker. They have therefore not met the requirement of Section 57 in its entirety.

24. He submitted that, even assuming cannabis sativa was recorded in the Occurrence Book in an alleged report, the items complained of were never recorded anywhere as a target of search. In any case, the petitioner has pleaded that the police were from a neighboring house when they passed by his house and unlawfully gained entry. The averment that his caretaker pleaded with the police not to take the items before the owner arrived has not been controverted anywhere in the affidavit.

25. He relies also onArticle 31 of the Constitution which provides every person has a right to privacy. Also cites the case of Samura Engineering Ltd & Another v Kenya Revenue Authority Nairobi Petition No. 54 of 2011, where the court emphasized the right to privacy. In addition he cited the case of Samson Mumo Mutinda v Inspector General National Police Service & 4 Others [2014] eKLR on same subject.

26. He submitted that,Section 119 of the Criminal Procedure Code provides that a search warrant may be issued on any day and maybe executed on any day between the hours of sunrise and sunset although the court may be the warrant authorize the police officer or other person to whom is addressed to execute it at any hour. There is absolutely no reason why the Respondents did not obtain warrants of search given the foregoing provision. He relies on Standard Newspaper Ltd & Another v Attorney General & 4 Others [2013] eKLR.

RESPONDENTS’ SUBMISSIONS:

27. The respondents submitted that, the property the Petitioner seeks to get back from the Respondents was taken as a result of an arrest that was made, after a legitimate complaint of an assault was made to them after which they went to the alleged scene of crime and found individuals to be in possession of drugs and narcotics and therefore made arrests and collected evidence.

28. That they had a duty under the law to provide evidence in a court of law to be used in criminal cases and that evidence in form of exhibits is to be detained until the case is fully heard and determined. They rely on Section 121 of the Criminal Procedure Code. Whichprovides;

“(1) When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.

(2) If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.

(3) If no appeal is made, or if no person in committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise.”

29. They submit that, if the Petitioner would like for these items to be returned, this is not the proper forum to seek such orders, he ought to make an application before the trial court dealing with the criminal case. There is a pending criminal case against other suspects in Nyahururu Cr. Case No. 1499 of 2019 wherein other suspects arrested from the Petitioner’s home have been charged with Possession of Narcotic drugs contrary to Section 3(1) as read with Section 3(2) of the Narcotic and Psychotropic Substances Control Act.

30. The Respondents rely on Section 117 of the Criminal Procedure Code. provides;

“Where upon the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order;

(a) That the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or

(b) That the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.”

31. The Respondents submit that the Petitioner was named as the father by the three of the suspects that were arrested, who are minors and were charged separately from the adults and therefore the Petitioner is abusing the court process by coming to this court by way of petition instead of going to the trial court in Nyahururu Chief Magistrate’s Court as he knows he will be arrested as a co-accused person in the case. They rely on the cases of Francisca Akinyi v Republic [2018] eKLR where the court relied on Republic v Everlyne Wamuyu Ngumo [2016] eKLR, where it was held:

“I find that the Magisterial court was not entitled to direct that the subject motor vehicle be released to the Respondent/Accused. The reason for this is that the motor vehicle had not been produced as an exhibit in the Magistrate’s court. It is only when some property including a motor vehicle have been produced as an exhibit in court that that court is then seized with the jurisdiction to order for its disposal.”

32. Also the cases of In Francisca Akinyi v Republic (supra) the court also relied on David Muigai Mucheru v Kenya Forest Service & Another [2012]where it was stated:

“Clearly, therefore, there is not requirement in that section, that the court before which the person is charged must have received the property as an exhibit before the court can give orders in relation thereto. Provided that some property was taken from the accused when he was apprehended, (whether such recovery was made before, at the time of, or after the actual arrest), the court before which he is charged can issue orders relating to the property.”

33. Other cited case is Republic v Director of Public Prosecutions & 2 Others Ex-Parte Stephen Mwangi Macharia [201] eKLR.

34. It is submitted that that, the Petitioner has not met the threshold of proof set out in the case of Mumo Matemu v Trusted Society of Human Rights Alliance Civil Appeal 290 of 2012 (2013 eKLR) and Anarita Karimi Njeru v Attorney General, [1979] KLR 154. He has failed to prove with the requisite degree of precision, the matter in which his rights have been violated. Also cited is the case of John Harun Mwau v Independent Electoral and Boundaries Commission & Another [2013] eKLR, where the court stated referring to Article 27 of the Constitution;

“It must be clear that a person alleging a violation of Article 27 of the Constitution must establish that because of the distinction made between the claimant and others the claimant has been denied equal protection or benefit of the law. It does not necessarily mean that different treatment or inequality will per se amount to discrimination and a violation of the constitution.”

35. Thus it is contended that, the court ought not to interfere with other state organs unless it can be shown that they violate the constitution. Reliance is made on the Court of Appeal decision in Commissioner of Police & The Director of Criminal Investigation Department & Another v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR.

ISSUES, ANALYSIS AND DETERMINATION

36. After through the petitioners and respondents’ cases set out herein and their submissions, I find the issues are;

(a) whether the 1st and 2nd Respondents’ action of entry into the Petitioner’s house was unconstitutional and/or unlawful.

(b) Whether the 1st and 2nd Respondents’ actions of confiscation of the Petitioner’s properties are violation of the Petitioner’s Constitutional rights thus ought to be released to the Petitioner forthwith whether petitioner is entitled to an order for general damages for violation of the Petitioner’s Constitutional rights.

37. The Jurisdiction of a court is that authority reposed on the court of law to take cognizance of matters placed before it for adjudication. That jurisdiction may be general or specific, limited or unlimited. Jurisdiction of a court may be conferred by the constitution, statute or both. Whatever the case, the court as a creature of the constitution and the law, must only exercise the jurisdiction conferred on it.

38. The Supreme Court has spoken to this issue in a number of decisions. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & another (supra) the Court stated;

“[68] A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”

39. The Supreme Court went on to refer to its earlier decision in the Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011 and stated;

“Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

40. The legal position flowing from the above decisions is that a court of law must only exercise jurisdiction conferred on it either by the constitution, the law or both but cannot exercise jurisdiction it does not have, exceed jurisdiction conferred on it or even confer jurisdiction on itself through some form of innovation. Any action taken by the court without jurisdiction or exceeding jurisdiction would be unconstitutional and illegal.

41. This court is established under Article 165(1)of the constitution. Its jurisdiction is donated by Article 165(3) which provides; -

“(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;

(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;

(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—

i. the question whether any law is inconsistent with or in contravention of this Constitution;

ii. the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;

iii. any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and

iv. a question relating to conflict of laws under Article 191; and

(e) any other jurisdiction, original or appellate, conferred on it by legislation.”

42. Article 165(3) of the constitution confers on this court with very wide jurisdiction to deal with any matter that falls within its jurisdiction. That jurisdiction is not exhaustive given that Article 165(3) (e) states that the court can have any other jurisdiction, original or appellate, conferred on it by legislation. In terms of Article 165(3) (d) (ii), the court has jurisdiction to determine the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, the constitution.

43. Article 23(1) also states that the court has jurisdiction to hear and determine applications for redress of denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights.

44. This jurisdiction is to be exercised in accordance with Article 165 of the Constitution. Article 23(3) of the constitution undoubtedly confirms the extent of the width of the jurisdiction of this court to grant appropriate relief.

45. The Respondents have admitted to have entered the Petitioner’s house. They also admitted to have taken possession of the property complained of. At the time of entry and seizure of property, they did not have warrants of search. It has not been pleaded that there was no opportunity to get warrants of search.

46. The Respondents’ claim that the Petitioner should be facing charges of Possession of Narcotics and Psychotropic substances.

47. First, the Respondents have not shown what is the connection between a charge of possession of narcotics and the items taken from the accused. For instance, what would be the connection between the children bicycles, TV set and speakers to a charge of possession of Narcotics?

48. Secondly, the charge sheet produced does not even contain the name of the Petitioner as one of the accused person. There are no warrants of arrest against him.

49. No such charges or warrants have been proved to show that indeed the property of the Petitioner is intended to be used as an exhibits.

50. The averment of the Petitioner that he has made both oral and written requests at the police station for the release of the items has not been denied.

51. There is a demand letter for the release of the items which bears a stamp of the Nyahururu Police Station. The Respondents did not respond to that letter to either state that they intend to use the items as evidence or to request the Petitioner to present himself to the police. Their claim that those items may be exhibits is not supported by any evidence.

52. The instance when police can enter a person’s premises without warrant and thereon seize property of a person is provided for under the National Police Service Act Cap 84 which provide that:

53. Section 57 of the said Act provide that:

“Subject to the constitution, if a police officer has reasonable cause to believe;

That anything necessary to the investigation of an alleged offence is in any premises and that the delay caused by obtaining a warrant to enter and search those premises would be likely to imperil the success of the investigations; or

That anything necessary to the investigation of an alleged offence is in any premises and that the delay caused by obtaining a warrant to enter and search those premises would be likely to imperil the success of the investigation; or

That any person in respect of whom a warrant of arrest is in force, or who is reasonably suspected of having committed a cognizable offence, is in any premises, the police officer may demand that the person residing in or in charge of such premises allow him free entry thereto and afford him all reasonable facilities for a search of the premises, and if, after notification of his authority and purpose, entry cannot without unreasonable delay be so obtained, the officer may enter such premises without warrant and conduct the search, and may, if necessary in order to effect entry, break open any outer or inner door or without or other part of such premises.”

54. Section 60(1) provides that:

“When a police officer in charge of a police station, or a police officer investigating an alleged offence, has reasonable grounds to believe that something was used in the commission of a crime, is likely to be found in any place and that the delay occasioned by obtained a search warrant under Section 118 of the Criminal Procedure Code will in his opinion substantially prejudice such investigation, he may, after recording in writing the grounds of his belief and such description as is available to him of the thing for which search is to be made, without such warrant, enter any premises in or on which he or she suspects the thing to be and search or cause to be made for, and take possession of such thing.”

55. In reply filed by the Respondents, they have not provided any bases why they could not obtain warrants of search so as to meet the provision of Section 57 (a) aforesaid. The Section requires that there be reasonable cause on the part of a police officer to believe that the delay occasioned by obtaining warrants would prejudice investigation. No such cause has been shown or even pleaded in the affidavit.

56. Section 57(b) allows the police to enter premises without warrants if the following conditions are met:

“A person in respect of whom a warrant of arrest is in force; or

A person who is reasonably suspected of having committed a cognizable offence, is in the premises, the police officer may demand that the person residing in or in charge of such premises allow him free entry thereto and afford him all reasonable facilities for a search in the premises. The section in this instance also requires the officer to give a notification of his authority and purpose, and it is only after entry cannot without unreasonable delay be so obtained, that the officer may such premises”

57. In this instance, there were no warrants of arrest against the Petitioner. Secondly, it has not been shown or even pleaded that the police demanded to enter the house on free entry or that they gave notification to the Petitioner or any of the occupants including the caretaker. They have therefore not met the requirement of Section 57 in its entirety.

58. Section 60 of the aforesaid Act requires the police officer in charge of a police station to record in writing the grounds of belief that he has to enter the premises without warrant and further write a description of the thing for which search is to be made. He may thereafter enter the premises and take the thing described.

59. In the affidavit filed by the Respondents, no such grounds of belief were recorded anywhere before the entry, none have been pleaded and no description of the thing that was going to be seized was ever recorded anywhere. They have therefore not met the requirement of Section 60 of the Act.

60. Even assuming cannabis sativa was recorded in the Occurrence Book in an alleged report, the items complained of were never recorded anywhere as a target of search. In any case, the petitioner has pleaded that the police were from a neighbouring house when they passed by his house and unlawfully gained entry.

61. The averment that his caretaker pleaded with the police not to take the items before the owner arrived has not been controverted anywhere in the affidavit.

62. Article 31 of the Constitution provides that:

“every person has a right to privacy, which includes the right not to have;

i. Their person, home or property searched.

ii. Their possession seized.

iii. Information relating to their family or private affairs unnecessarily required or revealed; or

iv. The privacy of their communication infringed.”

63. In the case of Samura Engineering Ltd & Another v Kenya Revenue Authority Nairobi Petition No. 54 of 2011, the court in emphasizing the right to privacy stated that

“The right to privacy enshrined in our constitution includes the right to one’s person or home searched, one’s property searched or possession seized. Since searches infringe the right to privacy, they must be conducted in terms of legislation which must comply with the provisions of Article 24. It has been said that the existence of safeguards to regulate the way in which state officials enter the private domains or ordinary citizens is one of the features that distinguish a democracy from a police state…”

64. In Samson Mumo Mutinda v Inspector General National Police Service & 4 Others [2014] eKLR the court held that

“the right to privacy protects a person’s autonomy. The breach of the right of privacy either involves violation of the law that permits infringement of the right consistent with the limitation provided under Article 24 or failure to obtain consent of the person. Thus the right to privacy may be waived by a person consenting to the search of his person or premises in certain circumstances. Such consent must be voluntary and freely given.”

65. In that case it was established that the owner of the premises gave consent to the entry and voluntarily gave the government officers the items complained of and therefore on that ground alone the petition failed.

66. Section 119 of the Criminal Procedure Code provides that

“a search warrant may be issued on any day and maybe executed on any day between the hours of sunrise and sunset although the court may be the warrant authorize the police officer or other person to whom is addressed to execute it at any hour.”

67. There is no justification demonstrated as to why the Respondents did not obtain warrants of search given the foregoing provision and circumstances obtaining in the instant matter.

68. In Standard Newspaper Ltd & Another v Attorney General & 4 Others [2013] eKLR the court held that:

“While it is true that police officers have a duty to prevent commission of crimes, they must, just like everyone else, abide by the law, and there must be due process in everything that they do in exercise of their mandate to prevent the commission of crime. To hold otherwise would be to say that the rules and dictates of democracy are too tedious to observe and an unnecessary inconvenience; and this would result in anarchy and negate the very core principles of our constitution.

Similarly, the notion of public interest and national security are in my view multi-faceted and capable of varied interpretations. For example, while it is in the public interest that citizens are not subjected to arbitrary searches and seizures that in essence act to violate other fundamental rights and freedoms and make mockery of the constitutional protection to privacy….”

69. The court proceeded to hold the police liable for entering without search warrants or the Petitioner’s media houses, searching and seizing their property.

70. The court makes a finding that, the entry, search and seizure carried out in the Petitioner’s house and premises was arbitrary and in breach of the Petitioner’s right to privacy and dignity.

71. On the right to property, the Respondents admit to have all the items complained about. They concede that those items belong to the Petitioner. They were taken without his consent and denied their use.

72. Article 40 of the Constitution provides as follows;

“40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property––

(a) of any description; and

(b) in any part of Kenya.

(2) Parliament shall not enact a law that permits the State or any person—

(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or

(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).

(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description…”

73. The Respondents have therefore clearly infringed his right to property.

74. No connection whatsoever has been demonstrated between the property seized and a charge of dealing with Narcotics that is allegedly going on against some other persons.

75. The Respondents’ claim that they intend to charge the accused with the same offence of dealing on narcotics. There is clearly no connection at all between the alleged intended charge and the items seized by the Respondents.

76. The claim for violation of the right to equal protection and benefit of the law flows from the infringement of the other rights as pleaded and failing to accord the Petitioner the protection against arbitrary entry and search and seizure of property.

77. In the case of Evelyn College of Design Vs AG and another, (2013) e KLRthe petitioner was awarded 100,000/00 as general damages for trespass in violation of constitutional right to properties. In the instant case the court finds that the petitioner is entitled to damages for violation of his constitutional rights and thus awarded Kshs.150,000/-.

78. Reliefs

79. Thus court makes the orders;

i. A declaration that the 1st and 2nd Respondents’ action of entry into the Petitioner’s house was unconstitutional and/or unlawful.

ii. A declaration that the 1st and 2nd Respondents’ actions of confiscation of the Petitioner’s properties are violation of the Petitioner’s Constitutional rights.

iii. An order for respondents to pay petitioner general damages Kshs.150,000/- for violation of the Petitioner’s Constitutional rights.

iv. An order directed at the 1st and 2nd Respondent to release the following properties belonging to the Petitioner forthwith:

· 4 CCTV cameras which were mounted around the house and were functional at the time.

· One CCTV monitor.

· One DVR machine (recorder)

· 4 bicycles belonging to the Petitioner’s children.

· One TV set (42 inches).

· One music mixture and player.

· One digital TV decoder.

v. Cost of the Petition.

DATED AND SIGNED AT NYAHURURU THIS 3RD DAY OF FEBRUARY, 2022.

.......................................

CHARLES KARIUKI

JUDGE