https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8316

Rono v Kiptoo & 6 others (Constitutional Petition E017 of 2023) [2026] KEHC 8316 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8316 (KLR) Republic of Kenya In the High Court at Eldoret Constitutional Petition E017 of 2023 RN Nyakundi, J June 12, 2026 IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 24, 28, 48, 50, 51 AND 259 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 29, 39, 47 AND 49 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: THE PERSONS DEPRIVED OF LIBERTY ACT (ACT NO. 23 OF 2014) LAWS OF KENYA AND IN THE MATTER OF: INDEPENDENT POLICING OVERSIGHT AUTHORITY ACT (ACT NO. 35 OF 2011) LAWS OF KENYA. AND IN THE MATTER OF: THE CRIMINAL PROCEDURE CODE (CAP 75) LAWS OF KENYA. AND IN THE MATTER OF: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS. AND IN THE MATTER OF: INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS. AND IN THE MATTER OF: UNLAWFUL ARRESTS HARASSMENT AND INCARCERATION OF THE PETITIONER HEREIN BETWEEN 27TH JUNE, 2023 AND 4TH JULY, 2023 WITHIN ITEN TOWN OF ELGEYO MARAKWET COUNTY BY KNOWN POLICE OFFICERS BASED AT ITEN POLICE STATION. Between Robert Rono Petitioner and Hon. Dr Chris Kiptoo 1st Respondent The Honourable Attorney General 2nd Respondent Ip Francis Omuse 3rd Respondent Ip David Munga, Dcio-iten Police Station 4th Respondent Ip Haron Odhiambo, Ocs-iten Police Station 5th Respondent and National Police Service Commission 1st Interested Party Director Of Public Prosecution 2nd Interested Party Judgment 1.The Petitioner lodged the instant petition by dint of Articles 2, 3, 10, 19, 20, 21, 22, 23, 24, 28, 48, 50, 51, 259, 27, 29,39, 47 and 49 of the Constitution of Kenya 2010 seeking for the following reliefs:a.A declaration that the conduct of the 1st Respondent was contrary to and inconsistent with the provisions of Articles 10 and 75(1)(c) of the Constitution of Kenya, 2010.b.A declaration that the Respondents violated Constitutional rights of the Petitioner and in Particular Articles 20(1) and (2), 24(1), 25(a), 27(1), 29, 31, 39, 47, 49, 50(1) and 51 of the Constitution of Kenya 2010.c.A declaration that the 3rd, 4th and 5th Respondent’s seizure and detention of the Petitioner with effect from the night of 26th June, 2023 to the time of his subsequent release violated his Constitutional right as set out under Article 27, 28, 29(a), 31(a) and (b) 47(1), 49(1)(a)(i), & (h) of the Constitution.d.A declaration that the arrest and incarceration of the Petitioner by the Respondent for alleged offence of cyber harassment and publication of false information contrary to section 27(1) (a) (b) (c) as read with section 27(2) of the Computer Misuse and Cyber Crime Act; contrary to section 23 of the said Act, was unjustified, without any basis and therefore unconstitutional.e.An order for adequate compensation for damages for unlawful arrest and incarceration in (c) and (d) above for deprivation of the Constitutional right to freedom of movement and Petitioner’s liberty by the Respondents.f.Any other relief that this Honorable Court shall deem fit by dint of Articles 23(3) of the Constitution of Kenya, 2010 and are just to grant in the circumstances.g.Costs of this petition. Petitioners’ case. 2.The facts leading to the institution of this petition are that the 1st Respondent falsely and maliciously lodged/caused the lodging of a complaint with Iten Police Station that the Petitioner had posted misinformation on 27th June, 2023 on the “KEIYO GAA and EMC” WhatsApp Groups with a subscription of 257 and 300 members respectively, each drawn from the Elgeyo Marakwet County with the intention to discredit/damage the reputation and humiliate the said 1st Respondent before members of the WhatsApp groups herein stated. 3.The Petitioner averred that the false and malicious complaint lodged with the Iten Police Station alleged that the Petitioner had posted misinformation purporting that “Dr. Chris Kiptoo – the Principal Secretary Finance, has no impact at all to the Keiyo community; that the appointment of Dr. Chris Kiptoo is an insult to the people of Keiyo community; and that Dr. Chris Kiptoo is an individual who has used Keiyo community to enrich himself and his family.” That the 1st Respondent at the time of lodging the false and malicious complaint knew or ought to have known that the Petitioner had not posted the words complained of if at all the said words were indeed posted in the alleged forums – and the Petitioner was and is not a subscriber/member of the WhatsApp groups wherein the words complained of were allegedly posted. 4.The Petitioner further averred that acting on the false and malicious complaint by the 1st Respondent, the 3rd Respondent in the company of other Police Officers from Iten Police Station, proceeded to the Petitioner’s residence at Kimumu area, within Uasin Gishu County, on the night of 27th June, 2023 and without a search warrant, proceeded to ransack the Petitioner’s house and made away with Kenya Shillings Five Hundred Thousand, being the Petitioner’s property. 5.That the 3rd, 4th and 5th Respondents together with the other Officers from the Iten Police Station, (Elgeyo Marakwet County), on the night of 27th June, 2023 when they proceeded to ransack and subsequently arrested the Petitioner; knew they had not in their possession any warrant of arrest in force against the Petitioner nor did they have in their possession a search warrant to authorize the search of the Petitioner’s dwelling place at Kimumu Area, within Uasin Gishu County. Notwithstanding, the said Officers proceeded to ransack the Petitioner’s house, seized the Petitioner’s property, namely money-and interested the Petitioner without conducting prior conclusive investigation sequel the false and malicious complaint lodged by the 1st Respondent. 6.It is also the Petitioner’s case that the 1st Respondent hosted various luminaries and dignitaries during the 7th edition of the Kaptagat Forest Annual Tree Planting Day which took place on 1st July, 2023 at the Kessup Forest Block, Elgeyo Marakwet County. That the Petitioner was not promptly informed of the reason he was suddenly hosting unexpected and uninvited guests at his home on the night of the 27th June, 2023 and that the uninvited guests not only ransacked his house and made away with a tidy sum of his money but also arrested him and arrested him to the Iten Police station where he was incarcerated for over Thirty-Six Hours before presentation to Court. 7.That during the said period of incarceration, the Petitioner’s House keys were confiscated by the 3rd and 4th Respondents who are answerable to the 5th Respondent being the Officer commanding station – Iten Police Station. Due to the actions of the 3rd, 4th and 5th Respondents, the Petitioner’s family could not access their home between 28th June, 2023 and 4th July, 2023. 8.That whereas the 28th June, 2023 was a gazette public holiday the 4th and 5th Respondents declined the requests by the Petitioner to be admitted to Police Bail/Bond and the Petitioner was therefore incarcerated for Thirty-six Hours before presentation to Court on Thursday, 29th June, 2023. That even after the thirty-six hours of incarceration, no formal charge was presented before the Honorable Court when the Petitioner was finally presented before Court at noon on 29th June, 2023. Instead, the Interested Party herein, filed Misc. Criminal Application No. E032 of 2023. 9.It is the Petitioner’s case that even after thirty-six (36) hours of incarceration, no formal charge was presented before the Honorable Court when the Petitioner was finally presented before Court at noon on 29th June, 2023. Instead, the Interested Party herein, filed Misc. Criminal Application No. E032 of 2023: Republic –vs- Robert Rono; wherein the Interested Party herein sought prayers inter alia that the Applicant (DPP) be granted leave to hold the Petitioner for a further 7 days before being arraigned in Court for plea taking pending completion of investigations. 10.The matter came up before Honorable C.A Kutwa – SPM who upon considering the Notice of Motion Application dated 29th June, 2023 filed by the Interested Party herein and the 3rd Respondent’s affidavit of even date, the Honorable Court granted the Interested Party herein, prayer to hold the Petitioner for a further 4 days and directed that his keys be released to him. 11.Consequently, the Petitioner was further detained for a period of four (4) days to allow the 3rd Respondent to in his own words ‘complete his investigations’ and to ‘record statements of other vital witnesses.’ 12.The Petitioner avers that the actions by the 3rd, 4th and 5th Respondents further rendered the Petitioner’s family homeless, especially the minors who were on mid-term break and suddenly spiraled from a life of comfort to being in dire need of care and protection. That in an unexpected twist of plot, when the matter was scheduled to come up for mention on 4th July, 2023, the 3rd, 4th and 5th Respondents orchestrated the handing over of the Petitioners’ keys and phone to him before escorting him to the Court precincts for the mention. When the matter came up for plea taking on 4th July, 2023, the 2nd Interested Party herein skedaddled from its previous position, withdrew its application and urged the Court to discharge the Petitioner. 13.The Petitioner contended that no charge was pressed against him, no statement of other vital witnesses were recorded and exhibited in Court; the 3rd Respondent never returned the findings of investigations to the Honorable Court despite seeking and being granted more time to further detain the Petitioner to enable him to complete investigation. Response to the Petition 14.In response to the petition, IP David Andolo Munga, the Director of Criminal Investigations Officer at Iten Police Station and the 4th Respondent herein, swore a Replying Affidavit on behalf of the 2nd, 3rd, 4th and 5th Respondents and the 2nd Interested Party. He deposed as hereunder: 15.That on the facts, the Respondents received a complaint from a person who identified himself as the personal assistant to the 1st Respondent, one Meshack Koima, who contacted the 4th Respondent through his mobile number 0722969806 from mobile number 0711125000, raising a complaint that the Petitioner, Robert Rono, had published defamatory statements on social media against the 1st Respondent, Dr. Chris Kiptoo. Thereafter, Meshack Koima sent screenshots of the messages that were posted on the WhatsApp group. 16.That following the receipt of the complaint, the personal assistant to the 1st Respondent thereafter took the Officers to the house of the Petitioner where they arrested him and conveyed him to the police station to answer to the charges. That in order to conclude investigations in respect of the complaint lodged, it was necessary to obtain the gadget from which the alleged defamatory texts were sent for examination and reporting on whether the texts were indeed sent from those gadgets. 17.That the Respondents made an application in Court to detain the Petitioner for 7 days at Iten Police Station pending completion of investigations before arraigning him for plea taking, and the application. That the Court allowed them to detain the Petitioner from 29th June 2023 up to 4th July 2023, when they were ordered to produce him in Court. That while granting the additional time to keep the Petitioner in custody for four days, the Court also released to the Petitioner his keys which had been in the custody of the Respondents, and the order and proceedings of the Court in that regard. 18.That the further detention of the Petitioner was necessitated by the need to conduct further investigations in order to confiscate the gadgets that the Petitioner used to publish the said defamatory statements and to forward them to the Cyber Crime Investigations Unit for forensic examination. That however, the Respondents did not have a search warrant to enable them to search the Petitioner's house and obtain the gadgets, and meanwhile the Court had already ordered the release of the keys to the Petitioner, who had in turn given them to his family members. That their attempts to recover the gadgets were thus frustrated and there was no way they would have obtained the evidence needed to nail down the Petitioner after the family was allowed to access the gadgets. 19.That in respect of paragraph 4 of the petition, the 4th Respondent deposed that the statements made therein were total falsehood, as it was IP Omusem, CP Kadogo, PC Okoth, PC Njoga and PC Kamau who proceeded to the house of the Petitioner at around 10.15 hours and arrested him in connection with the said publication but did not confiscate anything neither did they search the house. That further, it was true that the Officers did not have a search warrant, which is precisely why they were unable to confiscate the gadgets that may have been used to commit the crime. That the Officers did not take any money belonging to the Petitioner or any other property. 20.That the Officers did not access the Petitioner's premises by force, as the Petitioner himself collaborated with the police, opened the house and surrendered himself, locked his house and was then escorted to the police station. That the allegation that the Petitioner was held incommunicado was false, as the Petitioner was in possession of his mobile phone, a Techno T115 with IMEI 359913087058997, which he was allowed to use to call his wife and his lawyer, and which was only later confiscated. 21.That in respect of paragraph 6 of the petition, the allegation that the 1st Respondent hosted dignitaries on 1st July 2023 had no trajectory or relationship to the issues or circumstances surrounding the arrest and arraignment of the Petitioner and was therefore of no moment in these proceedings. That contrary to the allegations in paragraph 8 of the petition, the Petitioner was duly informed of the reason for his arrest. That with respect to paragraph 9, the Respondents denied the same, and deposed that the keys of the Petitioner were confiscated for the sole reason of abiding with routine and ensuring the safety of persons in custody, and that the same would have been released to anyone upon request; however, during the said period, no request was made despite the Petitioner having received many visitors. That it was further disclosed that the Petitioner's counsel thereafter informed the Court that the Petitioner's wife was traveling from Nakuru on 29th June 2023 when the keys were released. 22.That with regard to paragraphs 10 and 11 of the petition, it was indeed true that 28th June 2023 was a gazetted public holiday and that the Respondents could not process bail and bond. Further, had the Petitioner been released earlier, there was a high risk that he would have tampered with the evidence they needed to collect, namely the gadgets used to publish the statements. That in response to paragraphs 12 and 13 of the petition, the 4th Respondent reiterated the contents of paragraphs 9 and 10 of the affidavit. That with respect to paragraphs 14, 15, 16, 17 and 18 of the petition, the keys were released to the Petitioner's wife as soon as the Court made the order, and the Respondents were therefore not responsible for the allegations set out in the petition regarding denial of the Petitioner's wife and children access to the house. 23.That in response to paragraph 19 of the petition, it was correct that they applied to the Court to discharge the Petitioner because, since they could not access the gadgets as stated above, they did not get sufficient evidence to sustain any charges against the Petitioner, and hence their move to discharge him. That in response to paragraphs 20 and 21 of the petition, during the period when the Petitioner was in custody, the Respondents did record a statement from one Victor Kipkemboi Kipyego on 29th June 2023. 24.That the 4th Respondent was advised by the Principal State Counsel on record that the Petitioner was held and that the said timelines were proper and in accordance with Article 49 of the Constitution. That the petition was not drafted to the precision as enunciated by the case of Anarita Karemi as the Petitioner had not adduced any facts or evidence to support his allegations of contravention of the Constitution Petitioner’s written submissions 25.Learned Counsel Mr. Ochiel, appearing for the Petitioner, filed written submissions and framed the following issues for determination:a.Whether the Respondents violated the Petitioner's rights as an arrested person under Article 49 of the Constitution;b.Whether the Respondents failed to adhere to national values and principles of governance in violation of Article 10 of the Constitution;c.Whether the Respondents violated the Petitioner's right to dignity, security and privacy under Articles 28, 29 and 31 of the Constitution; andd.What the appropriate reliefs are. 26.On the first issue, Counsel submitted that the 3rd, 4th and 5th Respondents violated the rights of an arrested person as guaranteed under Article 49(1)(a) of the Constitution, which requires that an arrested person be promptly informed, in a language they understand, of the reasons for their arrest. He further submitted that Article 49(1)(f) requires that an arrested person be brought before a Court as soon as reasonably possible but not later than twenty-four hours after arrest, or on the next Court day where the twenty-four-hour period expires outside ordinary Court hours. Counsel contended that the denial of bail and the prolonged incarceration of the Petitioner for thirty-six hours without disclosure of the complainant's identity constituted a gross violation of these Constitutional guarantees. He further invoked Article 29(b), which protects every person from arbitrary deprivation of freedom and detention without trial outside a state of emergency. 27.Counsel relied on the decision in Rono v Maalim & another; National Police Service Commission & another (2023) KEHC for the proposition that arrested persons must be presented to Court in strict adherence with Article 49(1)(f) of the Constitution, and on Micheal Rotich v Republic (2016) KLR, where the Court stressed the requirement under Article 49(1)(a)(i) that any arrested person must be promptly informed in a language they understand of the reasons for their arrest. 28.Counsel submitted that the Respondents’ actions amounted to gross violations of the rights of arrested persons under Art. 49 of the Constitution. He urged the Court to hold the Respondents accountable and appropriate remedies, including declaratory relief, compensation, and institutional reforms to prevent future violations. 29.On the second issue, Counsel submitted that Article 10(1) of the Constitution binds all state organs, state Officers and public Officers to the national values and principles of governance whenever they exercise public authority. He argued that the 1st Respondent, by lodging a false and malicious complaint and setting in motion the criminal justice machinery against the Petitioner when other avenues of redress for alleged defamation were available, abused the influence he wields by virtue of his public office. Counsel further submitted that Articles 75(1)(c) and Section 7 of the Leadership and Integrity Act prohibit a state Officer from violating the rights and fundamental freedoms of any person or from engaging in activities amounting to abuse of office. In support, Counsel cited Kimunai ole Kimeiwa & 5 others v Joseph Motari Mosigisi (The Then District Commissioner Rongai District) & 3 others [2020] eKLR, where the Court held that a public servant who acts maliciously toward citizens and outside the remit of his office forfeits the protection and immunity afforded by his public position. 30.On the third issue, Counsel submitted that Article 28 of the Constitution guarantees every person inherent dignity and its protection, Article 29 guarantees freedom and security of the person including protection from arbitrary deprivation of liberty, and Article 31 protects the right to privacy of the home. He relied on Stanley Kimathi Raini v Traffic Base Commander, Runyenjes Police Station & 5 others (2019) eKLR for the position that wrongful arrest involves deprivation of a person's fundamental rights to dignity and security of the person. 1st Respondent’s written submissions. 31.Mrs. Ledishah, appearing for the 1st Respondent, filed written submissions dated 22nd October 2023. Counsel framed two issues for determination: first, whether the 1st Respondent violated the Petitioner's rights as an arrested person under Article 49 of the Constitution of Kenya 2010; and second, whether the 1st Respondent's conduct was contrary to and inconsistent with the provisions of Articles 10 and 75(1)(c) of the Constitution. 32.On the first issue, Counsel submitted that the 1st Respondent is not and has never been a police Officer and therefore could not, in law, be held to have violated the Petitioner's rights as an arrested person under Article 49 of the Constitution. Counsel noted that the Petitioner's own submissions at paragraph 5 attributed the violations of Article 49 to the 3rd, 4th and 5th Respondents, not to the 1st Respondent. Counsel therefore submitted that the 1st Respondent ought not to be held liable for violations of the Petitioner's rights as provided in Article 49 of the Constitution. 33.On the second issue, Counsel submitted that to establish a violation of Article 75(1)(c) of the Constitution, the Petitioner was required to demonstrate specific conduct by the 1st Respondent that would bring the office of the 1st Respondent into disrepute, specifically by establishing: a conflict between personal interest and official duties; compromise of official or public interest; and demeaning conduct. Counsel maintained that the Petitioner had failed to demonstrate any of these elements. Counsel further argued that the 1st Respondent, as a law-abiding citizen, reported the Petitioner's online publications to Iten Police Station pursuant to Section 27(2) of the Computer Misuse and Cybercrimes Act and that this was done without abuse of his office. Invoking the clean hands doctrine, Counsel cited Wanyonyi v Awinoa (Civil Appeal E118 of 2023) [2023] KEHC 26113 (KLR) for the proposition that he who approaches equity must be free from any taint of fraud with respect to the claim before the Court, and submitted that the Petitioner, having published misinformation against the 1st Respondent, could not benefit from his own wrongdoing. 34.Counsel further submitted that Section 109 of the Evidence Act places the burden of proof on the party asserting a particular fact. Counsel maintained that the Petitioner had failed to discharge the burden of proof against the 1st Respondent with respect to alleged violations of Articles 10 and 75 of the Constitution, and that the petition as against the 1st Respondent was neither corroborated nor merited. Invoking the purposive interpretation of Constitutional provisions, Counsel relied on the Canadian authority quoted in Richard Kariuki v The Attorney General & Kariuki Enterprises Ltd Misc Civil Application 7 of 2006 for the proposition that Constitutional text must be interpreted in light of the language, structure, history and underlying philosophies of society. 2nd, 3rd, 4th and 5th Respondents' and 2nd Interested Party's Submissions 35.Ms. Winnie Cheruiyot, appearing for the state, filed written submissions on behalf of the 2nd, 3rd, 4th and 5th Respondents and the 2nd Interested Party. Counsel framed three issues for determination: whether the Petitioner's arrest and detention by the 3rd, 4th and 5th Respondents was lawful; whether the 2nd to 5th Respondents violated the Petitioner's rights under Articles 49, 10, 28, 29 and 31 of the Constitution of Kenya 2010; and whether the Petitioner adduced sufficient evidence to support his allegations of Constitutional violations. 36.On the lawfulness of the arrest, Counsel submitted that the 3rd, 4th and 5th Respondents acted pursuant to statutory authority conferred by Section 29 of the Criminal Procedure Code (Cap 75), which empowers a police Officer to arrest without a warrant any person whom the Officer reasonably suspects to have committed a cognizable offence. Counsel argued that the complaint against the Petitioner disclosed cognizable offences under the Computer Misuse and Cybercrimes Act 2018, namely cyber harassment and publication of false information contrary to Sections 22 and 23 of the Act. Counsel submitted that the threshold for a lawful arrest is reasonable suspicion and not conclusive proof, and that the content of the WhatsApp posts as described in the complaint gave the police a credible basis to believe an offence under the cybercrimes law had been committed. Counsel therefore submitted that the arrest was not arbitrary but founded on just cause as required by Article 29 of the Constitution. 37.On the procedural handling of the arrest, Counsel submitted that the 3rd and 4th Respondents duly informed the Petitioner of the reasons for his arrest at the time of arrest, as attested to in the Replying Affidavit of Inspector David Andolo Munga, and that the Petitioner's assertion to the contrary was uncorroborated and expressly denied. On the question of the period of detention, Counsel submitted that the Petitioner's arrest occurred late at night on 27th June 2023, outside ordinary Court hours, and that by the time preliminary investigations and processing were completed the following day (28th June 2023), the Court at Iten had concluded its daytime session. The Petitioner was consequently presented at the first available opportunity on the next Court day, 29th June 2023. Counsel submitted that this brief extension beyond twenty-four hours was occasioned solely by the timing of the arrest and the practical necessity of concluding investigative steps and liaising with the Office of the Director of Public Prosecutions, and did not constitute a deliberate or negligent holding of the Petitioner beyond what was reasonably necessary. 38.On the allegation of violation of Articles 28 and 29 of the Constitution, Counsel submitted that a lawful arrest conducted with necessary civility and without excessive force does not amount to a degradation of dignity. Counsel argued that the Petitioner had not alleged any specific treatment such as physical abuse, public parading or verbal insults that would implicate Article 28, and that his complaint of "harassment" was vague and unsupported by evidence of any particular indignity. As regards Article 29, Counsel reiterated that the Petitioner was informed of the allegations against him and brought before a Court within the Constitutionally permissible timeframe, and that the mere fact of overnight custody in the circumstances did not equate to a Constitutional violation. Counsel submitted that the Respondents upheld the Petitioner's rights at all material times and urged the Court to dismiss the petition. Analysis and determination 39.This petition pertains to the interpretation of the various articles of the Constitution of Kenya in relation to the claims made by the Petitioner that the Respondents in exercising their Constitutional and statutory duty did infringe and violate his rights calling for serious sanctions from this Court including an award of damages. This petition primarily involves the functionality of Constitutional bodies and the dictates of power conferred upon each of them to exercise such authority for the benefit of the citizens of the Republic of Kenya. This task would carefully involve this Court going through the erudite and scholarly opinions and observations made by the learned Counsels seized of this matter on behalf of their respective clients. Before embarking upon the exercise of determining whether the Respondents have infringed or violated the various articles of the Constitution, as pleaded by the Petitioner the first point of call would be to refer to the cardinal principles of interpretation of the Constitution. This analysis would be taking into account the oral evidence on oath by the witnesses, the respective affidavits and case law relied upon by learned Counsels to bring home the conversation surrounding this petition. In this respect, I consider the following issues to be of fundamental importance to unlock the petition as filed against the Respondent:a.How do the principles on interpretation of the Constitution provide the yardstick to establish whether the Petitioner’s rights were infringed or violated altogether by the Respondents jointly and severally?b.Whether the petition meets the Constitutional threshold for litigation;c.Whether the arrest and detention of the Petitioner by the 3rd, 4th and 5th Respondents was lawful;d.Whether the 2nd to 5th Respondents violated the Petitioner's Constitutional rights under Articles 28, 29, 31 and 49 of the Constitution;e.Whether the conduct of the 1st Respondent was contrary to and inconsistent with Articles 10 and 75(1)(c) of the Constitution; andf.What reliefs, if any, the Petitioner is entitled to. 40.The petition concerns issues of fundamental Constitutional import. It implicates the fundamental rights of the Petitioner entrenched in Article 22, 25(a), 27(1) (4), 28, 29, 31, 40, 47, 48 and 50 of the Constitution including his entitlement to be adequately compensated in the event there was unlawful breach of his Constitutional rights to liberty. It is settled law that where an Applicant seeks to vindicate his or her rights under the Constitution this Court has jurisdiction. Some of the issues which would feature prominently are whether the Petitioner’s arrest, detention and subsequent prosecution was consistent with the principle of legality, fairness and whether his right to freedom and security of the person guaranteed in our Constitution were infringed as a Constitutional matter. 41.It is trite that in so far as issued number one is concerned, that the Constitution is a living and organic document which require the Courts to construe it broadly and liberally. In our very own Constitution 2010 the drafters weighed in on Constitutional interpretation by the setting aside Article 259 on construing the same Constitution itself in the following words:This Constitution shall be interpreted in a manner that--(a)promotes its purposes, values and principles; (b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights; (c) permits the development of the law; and (d) contributes to good governance.(2)If there is a conflict between different language versions of this Constitution, the English language version prevails. (3) Every provision of this Constitution shall be construed according to the doctrine of interpretation that the law is always speaking and, therefore, among other things--(a)a function or power conferred by this Constitution on an office may be performed or exercised as occasion requires, by the person holding the office;(b)any reference in this Constitution to a State or other public office or officer, or a person holding such an office, includes a reference to the person acting in or otherwise performing the functions of the office at any particular time;(c)a reference in this Constitution to an office, State organ or locality named in this Constitution shall be read with any formal alteration necessary to make it applicable in the circumstances; and(d)a reference in this Constitution to an office, body or organization is, if the office, body or organization has ceased to exist, a reference to its successor or to the equivalent office, body or organization.(4)In this Constitution, unless the context otherwise requires--(a)if a word or expression is defined in this Constitution, any grammatical variation or cognate expression of the word or expression has a corresponding meaning, read with the changes required by the context; and (b) the word “includes” means “includes, but is not limited to”. 42.This petition is about the application on the Bill of Rights which concerns the Petitioner on the issues as to whether the conduct and action taken by the Respondents in effecting an arrest was within the confines of the Bill of Rights which is our Chapter 4 of the Constitution. The first of these issues is whether the Bill of Rights applies to the Petitioner when the Courts evaluate and examines the chain of events as triggered on 27th June, 2023. The question here therefore is what is the relationship between the Bill of Rights and the principles or rules of ordinary law? The way I sit from the perspective, there are three possibilities to navigate the interpretation and construing of the words in the Constitution. First, the Bill of Rights is considered to be a yardstick against which the ordinary law is tested. Secondly and in addition to being a yardstick, the provisions of the Bill of Rights may also be a beacon that must guide the interpretation in construing the ordinary law whether it meets the Constitutionalism in its context and text. Thirdly, it may be that the Bill of Rights in addition to being a yardstick for the ordinary statutes and also as a beacon for the development of the law in our country both enactments apply to the same legal disputes. This is significant for the respective statutes provide the baseline of the power exercised by the various organs of the Constitution and in our case it is the National Police Service as provided for under Article 244 as read with 245 of the same Constitution and for the Office of the Director of Public Prosecution under Article 157 of the same Constitution. 43.The learned Author Benjamin Cardozo in his writing the Nature of Judicial Process (New Haven; Yale University Press, 13th Edn. 1945) weighed in into this matter on Constitutional interpretation in which he remarked as follows:“A Judge is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. Judge is not to innovate at pleasure”. Rules which are applied to the interpretation of other statutes, apply to the interpretation of the Constitution. It may be desirable to give a broad and generous construction to the Constitutional provisions, but while doing so the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind. In fact, the rule of “literal construction” is the safe rule even while interpreting the Constitution unless the language used is contradictory, ambiguous, or leads really to absurd results. 44.Similarly, learned Author Barak in his book Purposive Interpretation in Law (Sari Bashi Transl.) (Princeton: Princeton University Press 2005 observed as follows:“That Constitutional language like the language of any legal text plays a dual role. On the one hand, it sets the limits of interpretation. The language of the Constitution is not clay in the hands of the interpreter, to be molded as he or she sees fit. A Constitution is neither a metaphor nor a nonbinding recommendation. On the other hand, the language of the Constitution is a source for its purpose. There are other sources, to be sure, but Constitutional language is an important and highly credible source of information. The fact that we may learn the purpose of a Constitution from sources external to it does not mean that we can give a Constitution a meaning that is inconsistent with its explicit or implicit language. Interpretation cannot create a new Constitutional text. Talk of Judges amending the Constitution through their interpretation of the Constitution is just a metaphor. The claim that a Constitutional text limits but does not command is true only for the limited number of cases in which, after exhausting all interpretive tools, we can still extract more than one legal meaning from the Constitutional language and must therefore leave the final decision to judicial discretion. In these exceptional cases, language provides a general direction but does not draw a precise map of how to reach the destination. Usually, however, Constitutional language sets not only the limits of interpretation, but also its specific content.” 45.The legislation which is at stake in this petition is the National Police Act No. 11A of 2011 which is the primary legislation governing the operations, functions and administration of the Kenya Police. It covers the Kenya Police Service, the Administration Police Service and the Directorate of Criminal Investigations. Whereas the Act of Parliament to give effect to Articles 157 and 158 of the Constitution being to operationalize the Office of the Director of Public Prosecutions under Section 4 it provides the following guiding principles to the office holder of the Directorate of Public Prosecutions couched in the following language:a.The diversity of the people of Kenya;b.Impartiality and gender equity;c.The rules of natural justice;d.Promotion of public confidence in the integrity of the Office;e.The need to discharge the functions of the Office on behalf of the people of Kenya;f.The need to serve the cause of justice, prevent abuse of the legal process and public interest;g.Protection of the sovereignty of the people;h.Secure the observance of democratic values and principles; andi.Promotion of Constitutionalism. 46.These provisions are the ones to be resorted to so as to unearth whether the purposes of their enactment was departed from by the duty bearers of those respective offices during the cause of probing the Petitioner for an alleged offence under the Cybercrime Act. The following principles of interpretation of legislation shall apply in interpreting whether the violation of the Articles of Constitution was indeed carried out while exercising the statutory powers by the Respondents. This will form the lens upon which this Court will be guided in the scenario which would be unfolding shortly to rule whether indeed there was a breach of the law and subsequently the Constitution giving rise to this petition.a.Legislation is always to be understood first in accordance with its plain meaning.b.Where the plain meaning is in doubt, the Courts will start the process of construction by attempting to discover, from the provisions enacted, to the broad purpose of the legislation.c.Where a particular reading would advance the purpose identified, and would do no violence to the plain meaning of the provisions enacted, the Courts will be prepared to adopt that reading.d.Where a particular reading would advance the purpose identified but would strain the plain meaning of the provisions enacted, the result will depend on the context and, in particular, on a balance of the clarity of the purpose identified and the degree of strain on the language.e.Where the Courts concluded that the underlined purpose of the legislation is insufficiently plain, or cannot be advanced without an unacceptable degree of violence to the language used, they will be obligated, however regretfully in the circumstances of the particular case, to leave to the legislature the task of extending or modifying the legislation. 47.The Supreme Court of Kenya as established foundational guidelines for Constitutional interpretation rejecting formalistic approaches in favour of holistic, purposive and transformative interpretation that promotes Article 10 on national values and principles of governance. In the case of Re Interim Independent Election Commission (2011) eKLR the Court inter alia established that the Constitution must be read as a whole, and no provision should be treated as superfluous. Therefore, the interpretation of the Constitution should be purposive and avoid literal formalistic or positivistic approaches that defeat the Constitution’s underlying values. There are also principles in the case of Communications Commission of Kenya & Others v Royal Media Services & 5 Others (2014) eKLR affirmed that the Constitution is a “living document”. Its interpretation must adapt to the changing circumstances over time while remaining true to the foundational aspirations of the people of Kenya. It is also crystal clear a decision by the same Court in the matter of the Principle of Gender Representation in the National Assembly and Senate (Supreme Court Advisory Opinion No. 2 of 2012) highlighted that Article 10 of values and principles of governance for example on participation of the people, inclusiveness, equity etc. are peremptory. They bind all State Officers and must bind any interpretation or implementation of the law and public policy. 48.The Petitioner in this petition has contended that his rights were violated by the Respondents therefore calling upon this Court to interpret the Constitution in a manner which the remedies defined under Article 23 can be granted as derived and structured by the Constitution itself. From the comparative perspective the Supreme Court of Namibia in the case of S vs Acheson 1991 (2) SA 805 stated as follows inter alia; That:“The Constitution of a nation is not simply a statute which mechanically defines the structure of government and the relationship between the government and the governed. It is a ‘mirror reflecting the national soul’; the identification of ideals and aspiration of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and tenor of the Constitution must therefore preside and permeate the processes of judicial interpretation and judicial discretion.” 49.The Bill of Rights which is the subject matter of this petition must be interpreted by the rules and principles that apply to the interpretation of the Constitution as developed by the Supreme Court and other Superior Courts in order to give effect to the rights and fundamental freedoms of the Kenyan people. The Court must therefore appreciate and determine the meaning of a provision of the Bill of Rights under Chapter 4 of the Constitution. The Constitutional sister State of South Africa by their own Constitutional Court delved into the same issue of interpretation of the Bill of Rights and in the case of S. Zuma 1995 (2) SA 642 remarked as follows:While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single 'objective meaning'. Nor is it easy to avoid the influence of one's personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed Lord Wilberforce's reminder that even a Constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination.... I would say that a Constitution embodying fundamental principles should, as far as its language permits, be given a broad construction. 50.In many a times the moral values of our Constitution are not upheld in every stage of our Constitutionalism or interpretation of it. That is why in order to truly understand what the Constitution morality reflects, there is need and necessity for the Constitutional Courts seized with jurisdiction to answer the question what it is that the Constitution is trying to say or to identify in its broadest language at the time of drafting and final promulgation as the supreme law of the land. Just borrow a leaf the learned Author Bhargava in his book titled Politics and Ethics of Indian Constitution made the following observation on the necessity to identify the moral values of the Constitution:“There is... a pressing need to excavate the moral values embedded in the Constitution, to bring out their connections, and to identify the coherent or not-so-coherent ethical worldviews within it. It is not implausible to believe that these values are simply out there, holding their breath and waiting to be discovered. The Constitution is a socially constructed object, and therefore it does not possess the hard objectivity of natural objects. This element of the Constitution is the ground for contesting interpretations. It is high time we identified these interpretations and debated their moral adequacy." 51.The Kenyan Constitution in Article 259 provides a roadmap of a wider scope of interpretation of the Constitution. One can summarize it as a legal mixed grill of approaches which include inter alia; purposive, contextual, literal and general interpretation. Generally, the general interpretation is the most perplexing of all the principles of Constitutional interpretation as observed by the comparative jurisprudence in the case of S v Makwanyane 1995 (3) SA 391 in which the Court held that “a supreme Constitution requires a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms. It is also in this respect that a Constitution is regarded as an organic instrument. Although is enacted in form of a Statute, it is sui generis. It must broadly, liberally and purposively be interpreted so as to avoid the hostility of the tabulated legalism and so as to enable into the continue to play a creative and dynamic roles in expressions and the achievements of the ideals and aspirations of the nation. In the articulation of the values, bonding its people and in disciplining the government. The Charter [of Rights and Freedoms] is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors... the comments of a few federal civil servants can in any way be determinative. Our Constitution is also the product of a multiplicity of persons, some of whom took part in the negotiations, and others who as members of Parliament enacted the draft. The same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played.” 52.From this legal perspective, one can say that a generous interpretation simply recognizes that the Constitution of the land cannot be interpreted in the narrow and realistic way in which statutes are sometimes subjected to while applying the applicable rules of interpretation. Whereas in contextual scope it is all about interpretation of individual provisions of Bill of Rights within the context and understanding in their social, historical and textual setting. In essence, the Petitioner is alleging that the Respondent violated Article 27, 29, 39, 47 and 49 of the Constitution and therefore calling upon this Court to exercise its mandate to find in his favour by granting the remedies prescribed in Article 23 of the Constitution. The question which is of importance in interpreting the provisions alluded by the Petitioner is whether applying the reasonable test there is justification of having had his rights limited for a purpose that contribute to an open and democratic society based on human dignity, equality and freedom. This is the fundamental question in so far this petition is concerned. 53.This is what inspired learned Author one Mehta to identify certain features of Constitutional morality which is clearly captured as follows:“The Constitution was made possible by a Constitutional morality that was liberal at its core. Not liberal in the visceral ideological sense, but in the deeper virtues from which it sprang: an ability to combine individuality with mutual regard, intellectualism with a democratic sensibility, conviction with a sense of fallibility, deliberation with decision, ambition with a commitment to institutions, and hope for a future with due regard for the past and present. The ability to work with difference was augmented by another quality that is rarer still: the ability to acknowledge true value. This may be attributed to the sheer intellectualism of so many of the members. Their collective philosophical depth, historical knowledge, legal and forensic acumen and sheer command over language is enviable. "To be effective, Constitutional laws have to rest on a substratum of Constitutional morality... In the absence of Constitutional morality, the operation of a Constitution, no matter how carefully written, tends to become arbitrary, erratic, and capricious. It is not possible in a democratic order to insulate completely the domain of law from that of politics. A Constitution such as ours is expected to provide guidance on what should be regulated by the impersonal rule of law and what may be settled by the competition for power among parties, among factions, and among political leaders. It is here that the significance of Constitutional morality lies. Without some infusion of Constitutional morality among legislators, judges, lawyers, ministers, civil servants, writers, and public intellectuals, the Constitution becomes a plaything of powerbrokers.” (See Andre Beteille, Democracy and its Institutions, Oxford University Press (2012). 54.In the seminal case of Nakusa v Tororei & 2 Others (No. 2) Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565 it was held as follows; That:“The High Court has a Constitutional role as the bulwark of liberty and the rule of law to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry of their fundamental rights and freedoms which had suffered erosion during the one party system…In interpreting the Constitution, the Court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry and modern trend. The point demonstrated in the judgement of Domnic Arony Amolo vs. Attorney General Miscellaneous Application No. 494 of 2003 is that interpretation of the Constitution has to be progressive and in the words of Prof M V Plyee in his book, Constitution of the World: “The Courts are not to give traditional meaning to the words and phrases of the Constitution as they stood at the time the Constitution was framed but to give broader connotation to such words and connotation in the context of the changing needs of time…In our role as “sentinels” of fundamental rights and freedoms of the citizen which are founded on laisez-faire conception of the individual in society and in part also on the political – philosophical traditions of the West, we must eschew judicial self-imposed restraint or judicial passivism which was characteristic in the days of one party state. Even if it be at the risk of appearing intransigent “sentinels” of personal liberty, the Court must enforce the Bill of Rights in our Constitution where violation is proved, and where appropriate, strike down any provision of legislation found to be repugnant to Constitutional right.” 55.The intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to this Court for the enforcement of their fundamental rights and freedoms. Similarly, Article 259 allows any person to institute proceedings claiming the Constitution has been violated or is threatened. (See the case of John Harun Mwau vs The AG (2012) eKLR. The High Court is clothed with constitutional jurisdiction empowering it to grant appropriate reliefs for reason of violation or infringement of any provision of the Constitution so that an aggrieved Petitioner is left naked or helpless in the eyes of the Constitution. 56.In the advisory opinion in the case of Re Interim Independent Election Commission the Supreme Court of Kenya had this to say to anchor at the safe harbor the guidelines on constitutional interpretation, thus:The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1)). The Constitution has incorporated non-legal considerations, which we must take into account, in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human rights based, and social-justice oriented State and society. The values and principles articulated in the Preamble, in Article 10, in Chapter 6, and in various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust, patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that judicial authority is derived from the people. That authority must be reflected in the decisions made by the Courts. 57.These principles will mirror significantly in interpreting the Bill of Rights application as they apply to the individual circumstances of the Petitioner. Whether the petition meets the Constitutional threshold for litigation 58.Before this Court ventures into the merits of the petition, it must first satisfy itself that the petition is properly before it and meets the threshold required for Constitutional litigation. The threshold question goes to the root of whether a genuine Constitutional grievance has been placed before the Court in a manner that enables proper adjudication. 59.Hence the question here is broad and is about standing of the Petitioner to move to Court to adjudicate the petition. It is trite that a person who approaches a court for relief is required to have an interest in the subject matter of the litigation in the petition. A review of the issues raised in the petition shows that the Petitioner alleges that his own rights have been infringed by the Respondents jointly and severally when an arrest order was effected and led to him being detained by the National Police Service and subsequently indicted by the Office of the Director of Public Prosecution under Article 157(6) & (7) of the Constitution. This is what the Court observed in Ferreira v Levin No. 1996 (1) SA 984 in which Chaskalson P added that:“It is my view that we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this Court to uphold the Constitution and would serve to ensure that Constitutional rights enjoy full measure of the protection to which they are entitled. Such an approach would also be consistent in my view with the provisions of Articles 19 and 24 of the Kenyan Constitution 2010 (Emphasis mine). 60.The following words of Lord Denning in the matter of applying precedents have become locus classicus:“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." 61.The case of Anarita Karimi Njeru v Republic (1976-1980) 1 KLR 1272, remains the foundational authority in this jurisdiction on the standard of pleading required in Constitutional petitions. In that case the Court expressed itself as follows:“We would however, again stress that if a person in seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.” 62.The Court of Appeal further affirmed in Petition No. 65 of 2013, Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR that Constitutional petitions must set out with reasonable precision the provisions of the Constitution alleged to have been violated, the manner of the violation, and the nexus between the conduct complained of and the Petitioner's rights. The purpose of this requirement is not to erect technical barriers to Constitutional litigation but to ensure that Respondents are placed on adequate notice of the case they must meet and that the Court is in a position to properly adjudicate the dispute. 63.Applying these principles to the instant petition, this Court is satisfied that the petition, whilst not a model of drafting precision, adequately meets the Constitutional threshold. The Petitioner has identified the specific Constitutional provisions he relies upon under Articles 10, 28, 29, 31, 47, 49 and 75(1)(c). He has with sufficient particularity described the conduct complained of the lodging of the complaint by the 1st Respondent, the warrantless arrest and visit to his residence, the thirty-six-hour pre-charge detention, the denial of bail, the confiscation of his house keys and the subsequent four-day Court-sanctioned detention. He has drawn a discernible nexus between the conduct of each Respondent and the specific rights alleged to have been violated. Each Respondent has had a full and fair opportunity to respond to the case against them and has indeed done so. I shall therefore proceed to the merits. Whether the arrest and detention of the Petitioner was lawful 64.Taking note of the data from the Kenya Bureau of Statistics it indicates that un-convicted individuals (remandees) currently make up roughly 40-43% of Kenya’s total Prisons’ population which hovers around 60,000-62,000 inmates nationwide. What this means is that majority of the Prison inmates are under trial prisoners and how majority of them may not even be required to be arrested and placed in police detention despite registration of a cognizable offence being charged with offences punishable for four years or less. What is of concern is that most of the under trial prisoners include not only the poor and illiterate but also include young adults from both genders. Given the Constitutional imperative under Article 49 of the Constitution 2010 arrest must not be used a punitive tool by the National Police Service under the excuse of investigating the complaint made by the victims of the offence in the respective Occurrence Books across the country. The Constitution of Kenya and the Criminal Procedure Code provides certain rights to the arrested persons. In law under Article 50(2) (a) of the Constitution there is a right known as presumption of innocence till one has been proven guilty which means that it is required that an arrested person be treated with humanity, dignity and respectfully until he or she is proven guilty by the Court of law properly constituted under Article 50(1) of the Constitution. 65.The National Police Service Standing Orders which draws its foundation from the Constitution Articles 244 & 245 as read with the National Police Act under Chapter 15 provides certain protocols with regard to rights of an arrested person. The main Statute the National Police Service Act under Section 35 it provides as follows:“To collect and provide criminal intelligence; undertake investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cyber-crime among others; maintain law and order; detect and prevent crime; apprehend offenders; maintain criminal records; conduct forensic analysis; execute the directions given to the Inspector-General by the Director of Public Prosecutions pursuant to Article 157 (4) of the Constitution; co-ordinate country Interpol Affairs; investigate any matter that may be referred to it by the Independent Police Oversight Authority; and perform any other function conferred on it by any other written law.” (See also Section 28 of the Act). 66.The Nation Police Service and its agents as constituted in Article 244 of the Constitution are bound by the Constitutional dictates which includes inter alia:a.Regard to public interest, the interests of administration of justice and the need to prevent and avoid abuse of legal processb.Upholding the defending Constitution.c.Respecting, observing, protecting, implementing, promoting and upholding the rights and freedoms in the Bill of Rights enshrined in the Chapter Four.d.Accountability to the public for decisions and actions taken and generally observe of Chapter Six (Leadership and Integrity)e.Accountability for administrative acts and observance of the values and principles of public service under Chapter Thirteen. 67.It is of fundamental importance that the various classified stages for purpose of this petition be referenced to as follows:ARREST AND DETENTION RULES/PRISONERS AND ACCUSED PERSONS1.Arrest for cognizable offence(1)Arrest for cognizable offence shall be conducted as follows—(a)a police officer may arrest any person without warrant, whom he suspects on reasonable grounds has committed a cognizable offence; and(b)in the manner provided under the provisions of section 29 of the Criminal Procedure Code (Cap. 75) and section 58 of the National Police Service Act (Cap. 84).(2)An investigating officer shall not arrest any suspect unless it is necessary to do so.(3)A police officer may, without an order from a court and without a warrant, arrest any person—(a)whom the officer suspects upon reasonable grounds of having committed a cognizable offence;(b)who commits a breach of the peace in the officer’s presence;(c)who obstructs a police officer while in the execution of duty, or who has escaped or attempts to escape from lawful custody;(d)in whose possession anything is found which is reasonably suspected to be stolen property;(e)whom the officer suspects upon reasonable grounds of being a deserter from the armed forces;(f)whom the officer finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;(g)whom the officer finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;(h)whom the officer suspects upon reasonable grounds of having been concerned in an act committed at a place out of Kenya which, if committed in Kenya, would have been punishable as an offence, and for which the person is liable to be extradited under any law in Kenya;(i)who having in possession without lawful excuse, the burden of proving? which excuse shall lie on that person, any implement of housebreaking;(j)who being a released convict is found committing a breach of any provision prescribed by section 344 the Criminal Procedure Code (Cap. 75) or of any rule made thereunder; or(k)for whom he has reasonable cause to believe a warrant of arrest has been issued.2.Detention of arrested persons(1)A police officer shall conduct a clear and unbiased assessment of the facts before arresting any suspect.(2)Detention of arrested persons shall be conducted as follows—(a)any person arrested with or without a warrant shall be searched and placed in cells and relevant entries made in the Occurrence Book and the Cells Register;(b)an arrested person shall be brought before court as soon as possible, but not later than twenty four hours after being arrested;(c)if the twenty four hours lapse after court hours, or on a day that is not an ordinary court day the arrested person shall be brought to court by end of the next working day; and(d)when the arrested person is wanted at another police station an apprehension report under section 37 of the Criminal Procedure Code (Cap. 75) shall be submitted to a Magistrate and an application made to have the person remanded to enable such person to be conveyed to the station where he or she is wanted.3.Release of person arrested on suspicion. A Commander of a police station may, after inquiries on arrested persons and on being satisfied that there is insufficient evidence to proceed with a charge, release any person who has been arrested on suspicion of having committed an offence.4.Arrest of Government or quasi government bodies employees(1)In case of an arrest of a person employed in a government institution, the following procedure shall be followed—(a)where it is necessary to arrest a person in employment of a Government institution, or State Corporation, the head of such person’s department, or a senior member of the department, shall, where possible, be informed; and(b)in minor cases of violation of national and county legislation by Government, or State Corporation employees, the employee may be summoned through the head of department, or local head of department, of his or her department in accordance with section 95 of the Criminal Procedure Code (Cap. 75).(2)Where the arrest is pursuant to section 77(a) of the Kenya Railways Corporation Act, the police officer whose duty it is to make such arrest shall–(a)request the head of the department of such employee to relieve the employee from his or her duties as soon as practicable; and(b)refrain from arresting such employee until he or she is so relieved and shall, until such release take all necessary steps to ensure that such employee does not escape.(3)Where it is necessary to arrest any employee of the Kenya Railways Corporation and the Kenya Ports Authority assistance may be sought from the Kenya Railways Police and Kenya Ports Police or from the local station master as the case may be.(4)Where any request is made to a head of a department under subparagraph (1), (2) or (3) above it shall be his or her duty to relieve the employee in respect of whom the request is made without unnecessary delay.(5)Any member of the Kenya Defence Forces arrested for committing an offence, the Prisoner’s Commanding Officer shall be informed of such arrest without delay.5.Employers to be notified of arrest of employee(1)A police officer, where possible, shall notify an employer when—(a)it is found necessary to arrest his or her employee; or(b)an employee is required as a witness in a court.6. Conduct of detentions(1)Detention of arrested persons shall be conducted as follows—(a)any person arrested with or without a warrant shall be searched and placed in cells and relevant entries made in the Occurrence Book and the Cells Register; and(b)an arrested person shall be brought before court as soon as possible, but not later than twenty four hours after being arrested.(2)If the twenty four hours lapse after court hours, or on a day that is not an ordinary court day the arrested person shall be brought to court by end of the next working day.(3)If the arrested person is wanted at another police station an apprehension report under section 37 of the Criminal Procedure Code (Cap. 75) shall be submitted to a Magistrate and an application made to have the person remanded to enable such person to be conveyed to the station where he or she is wanted.(4)Once a person has been arrested, full particulars, including the name and number shown on his identity documents, if any, shall be entered in the relevant Police Station records and on the fingerprint form (Form p.20).(5)The Identity documents shall remain the personal property of an arrested person and shall be treated in the same manner as other property of an arrested person and in accordance with paragraph 25(9).7.Rights of an arrested and detained person(1)An arrested person has the right—(a)to be informed promptly, in language that the person understands, of—(i)the reason for the arrest;(ii)the right to remain silent; and(iii)the consequences of not remaining silent;(b)to remain silent;(c)to communicate with an advocate, and other persons whose assistance is necessary;(d)not to be compelled to make any confession or admission that could be used in evidence against the person;(e)to be held separately from persons who are serving a sentence;(f)to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.(g)at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.(2)A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.(3)A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Constitution, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.(4)A person who is detained or held in custody is entitled to petition for an order of habeas corpus.(5)A detained person is entitled to—(a)communicate with and receive visits of members of the family subject only to reasonable conditions and restrictions (when exceptional needs of investigations so require) which shall be spelt out in the Standing Orders subject to the approval from the Ministry;(b)inform his or her family of the arrest and detention and place of detention;(c)access to doctors and general medical assistance when required; and(d)lodge complaints about ill treatment and the right to compensation, which shall be investigated by the Independent Policing Oversight Authority and not by police officers from the respective police stations.(6)Where the spouse, child, parent or other close relative of any person held in police custody makes an inquiry at any police station or other police premise as to the whereabouts of the person so held, the person shall, after giving satisfactory proof as to his or her relationship to the suspect held, be allowed to communicate the person in custody.(7)The detained person shall be entitled to communicate freely and confidentially with persons making the visit.(8)Whenever a detained person dies in custody, both the officer-in-charge and the officer on duty shall immediately notify the Independent Police Oversight Authority and any other body required by law to be so notified in writing no later than within twenty four hours after the incident for purpose of investigations.8.Release on bail or bond(1)The following steps shall be followed in case of release of detainees on bail or bond—(a)a person arrested by a police officer on a minor offence shall, be released on the security of payment of cash bail, unless the officer-in-charge of the police station has reasonable grounds for believing that the detainee shall not answer his or her bail and the cash bail shall be granted in accordance with Chapter 56 of these Standing Orders;(b)any person released on cash bail and who fails to appear as required, the officer-in-charge of the relevant police station shall make an application to the magistrate to issue a warrant of arrest for such person;(c)the cash bail granted under h 1(a) shall be paid into Court as soon as is reasonably practicable and a receipt issued for such payment, under no circumstances shall cash bail be retained at any police station after the date on which the accused shall have appeared in court; and(d)a magistrate may, order the cash bail to be forfeited to the State or to be retained by the court until such time as the arrested person may appear or sufficient grounds are shown to exist to justify an order for forfeiture.(2)Pursuant to section 123 (i) of the Criminal Procedure Code (Cap. 75), the police officer-in-charge of a station, may release a person from the police custody on bail or bond.(3)If the county commander directs that the offence committed is bailable but there are grounds for the suspect to remain in custody, all documents and particulars thereof shall be entered in the register of accountable documents at both sub-county and police station level.(4)All cash bail receipt books are accountable documents and all particulars thereof shall be entered in the register of accountable documents at both sub-county and police station level.(5)Only one cash bail receipt book shall be in use at any one time at any police station and, when not in use, it shall be kept under lock and key, separate from all unused ones which shall also be kept under lock and key.(6)The officer-in-charge of police stations shall regularly inspect the cash bail receipt book and balance all outstanding receipts against the cash received.(7)The sub-county commander shall, during the regular inspections and visits shall examine the register of accountable documents and ensure their compliance with the provisions of subparagraphs 5 and 6.(8)When handing over a police station the police officer-in-charge of a police station shall enter in the handing over or taking over certificate, details of the amount of cash bail on hand and shall sign the register of accountable documents as per the status.(9)A person who is released from custody on either bail or bond shall be required to appear before a magistrate on a specified date, and under no circumstances shall a prisoner released on cash bail or bond be required to appear at a police station or other place.(10)Despite the foregoing where the alleged offence is punishable by a fine only or by imprisonment for a term not exceeding six months, the officer in charge of a police station shall release the arrested person on cash bail or bond.9.Factors to consider in relation to bail. The following factors shall be considered in relation to bail—(a)likelihood that the accused will abscond—(i)the nature of the charge or offence and the seriousness of the punishment to be awarded if the applicant is found to be guilty (consider quantity and value of any item seized);(ii)the strength of the prosecution case against the accused person or nature of evidence on which the suspect has been arrested;(iii)community ties; if suspect is a foreigner or of unknown nationality (immigration to be notified and supporting evidence obtained); no confirmed place of residence, whether he or she as employment, children/family ties; and(iv)accused failure to surrender to bail on previous occasion (provide criminal case No. & court)(b)likelihood that the accused will interfere with witnesses or the investigation:—(i)likelihood of interference with prosecution witnesses such as proximity of address, community or relationship to any witness; and(ii)the inquiries that have been made by the police in relation to the offence and any further inquiries proposed to be made (including whether information given by the accused has led to discovery of evidence or arrest of another person in relation to other offence);(c)likelihood that the accused will commit an offence while on release—(i)the character and antecedents of the accused (e.g. criminal record and/or material yet to be recovered believed to be possession of the accused); or(ii)other pending prosecutions.(d)that detention is necessary for the accused’s own protection officer’s view based on views in the community other indicators of possible harm to the accused if released.(e)security of the suspect or accused person. Provided that this Order shall also be guided by the provision of policy on Bail and Bond 2015.10.Arrest on the basis of an electronic signal. When arresting a person on the basis of an electronic signal advice, a police officer shall—(a)not arrest on signaled information unless the electronic signal contain the following particulars—(i)in cases of cognizable offences, the name and description of the offender, nature and brief details of the alleged offence and the date offence was committed, whether the offence is bailable and the amount of bail which may be accepted; or(ii)in cases of non-cognizable offences, the same details as for cognizable offences and, in addition, confirmation that a warrant of arrest has been issued;(b)as soon as a wanted suspect has been arrested he or she shall be brought before a magistrate on apprehension report and an application to have the suspect remanded in custody applied for;(c)the station requesting the arrest shall be notified by signal and asked to provide an immediate escort for the suspect.11.Identity documents of arrested persons(1)The identity document of an arrested person shall be handled as follows—(a)once a person has been arrested, full particulars, including the name and number shown on his or her identity documents, if any, shall be entered in the relevant Police Station records and on the fingerprint form (Form p.20); and(b)the Identity documents shall remain the personal property of an arrested person and shall be treated in the same manner as other property of an arrested person and in accordance with paragraph 24(9).12.Cleanliness of cell(1)Police cells and lock-up facility shall—(a)be cleaned thoroughly every day;(b)be whitewashed and disinfected at frequent intervals;(c)be kept in hygienic conditions conducive for human habitation; and(d)have adequate light, toilet and washing facilities and outdoor area.(2)The detainees’ beddings shall be aired daily and washed when necessary.(3)The police officer on office duty shall retain the cell keys when not in use, unless special Station Standing Orders exist to the contrary.13.Cell register. An Officer in-Charge of a police station shall maintain a cell register into which the following particulars in respect of detained persons shall be entered—(a)name;(b)reasons for the arrest and detention;(c)date and time of the arrest and detention;(d)date and time of first appearance before a court;(e)identity of the arresting officer;(f)date and time for interrogations and identity of interrogators;(g)date and time of any transfer of the detainee to another place of detention; and(h)name of the police officer who shall be responsible for the detainees’ welfare and for updating the register.14.Daily inspection of cells(1)An Officer-in-charge of a police station shall inspect the cells every day to ensure that they are clean and to ascertain whether the detainees have any complaints.(2)Any complaints received shall be recorded in the Occurrence Book and the complaint shall be investigated and appropriate action shall be taken if the complaint is found to be genuine.(3)An Officer-in-charge of a station shall physically conduct a roll call of all persons in cells against the cells Register.(4)If a detainee complains of illness or appears to be ill or injured, the Officer-in-charge of the police station shall be informed immediately and medical attention sought.(5)Any prisoner complaining of any injury shall be taken to a medical officer who shall be requested to record such injuries on a prescribed medical examination form and this form shall be available at any subsequent trial or inquiry.(6)Detainees in police custody may not be employed on any work other than the cleaning of cells and beddings and no unauthorized person may be allowed access to police cells.15.Movement of detainees(1)A detainee shall not be removed from custody without permission of the officer in charge of the police station except for calls of nature or in cases of sickness.(2)All movements of the detainees in police custody shall be recorded in the cells register and Occurrence Book in accordance with instructions contained in Chapter 59.(3)The detainees shall be searched before returning to the cells and when not confined in the cells a detainee shall not be left unattended and vigilance shall be exercised at all times to prevent escapes from custody.(4)Detainees in police custody shall be kept according to the following requirements—(a)men and women shall be kept separately;(b)intersex persons shall be kept separate from men and women;(c)juveniles and children shall be kept separately from adults; and(d)police detainees shall be kept separately from convicted prisoners.16.Detainees to be searched before placement in custody. A detainee, before being placed in custody, shall be searched and any object with which he or she may injure himself or herself or any other person or which may facilitate his or her escape shall be confiscated and retained with other articles of the detainee.17.Detainee to be provided with facilities to communicate with friends or legal representative.(1)Every detainee shall—(a)be given facilities to communicate with a friend or legal adviser, and such person shall be permitted to visit the detainee; and(b)be afforded privacy during any visit to avoid eavesdropping on conversations by the detainee and the visitor.(2)During a visit, the police officer on duty shall exercise due care to ensure that the detainee does not escape, and the detainee is in sight throughout the visit.(3)A detainee may upon request be supplied with writing materials and the detainee’s letters shall be posted or delivered without delay and on payment of the requisite fee and their emails or telephone messages shall be sent at once.(4)An accused person or his or her advocate shall on request be supplied free of copies of the charge sheet and or cautionary statement relating to the offence for which they have been charged.(5)When allowing visitors to visit caution shall be taken to prevent any items to be passed in.(6)Detainees shall be searched thoroughly before the before return to cells.18.Arrest of foreign nationals(1)Members of the press shall not be permitted to photograph or interview any detainee in custody within a police station.(2)A foreign detainee shall be permitted to communicate by letter, email or telephone or any other applicable media with the consular representative of the detainee’s home country.(3)Where no mission or consular exists in Kenya as contemplated under paragraph (2), the Inspector-General shall, inform the Cabinet Secretary for the time being responsible for matters relating to foreign affairs of the arrest of the foreign national.19.Dangerous or notorious detainees(1)Dangerous or notorious detainees shall be dealt with as follows—(a)if a police officer has reason to believe that a detainee in police custody is of a dangerous or notorious character, or one who has assumed one or more aliases, the police officer investigating the case shall inform the officer-in-charge of the police station in writing of the fact;(b)dangerous and notorious detainees shall be photographed immediately after arrest and before they are produced in court; and(c)the letter to the officer-in-charge of the police station and a photograph shall be attached to the police case file and the court prosecutor shall attach them to the detainee’s remand or committal warrant so that special precautions to prevent escape, may be taken by the prison authorities.20.Detention of notorious or desperate criminals(1)A police officer handling a suspect known to be a criminal of particular importance or evil influence shall take special precautions if such suspect can be expected to make a determined effort to escape.(2)The special precautions under h (1) may include–(a)the issuance of special orders in writing regarding the procedure to be adopted in respect of the particulars of the detainee;(b)the method in which he or she is to be detained, guarded or visited;(c)whether the detainee is to be kept in irons;(d)the police officer responsible for the keys of the cell; or(e)taking a photo of the detainee.21.Feeding of detainees(1) Detainees in police custody shall be fed where possible, according to national, religious or tribal customs of such detainees.(2)The officer in charge of a Police Station may order meals for detainees from an appointed contractor or from a local hotel or restaurant.(3)An officer in charge of a police station shall record a detainee’s meal requisition form for each order against the relevant occurrence Book entry and certify the correctness after verification that bills for the supply of detainee’s meals tally with the duplicate meal requisition form before payment is made.(4)An officer in charge of a police station shall ensure the provision of water, towels for women, mattresses, blankets, bed sheets, toilet paper and drinking water to the detainees where it is not available and when possible.(5)The sub-county police commander shall prepare the tender for the supply of detainees meals and the needed necessities and forward such tenders to the Kenya Police County Headquarters for approval after which the county or formation commander shall forward a copy of the approved tender to the National Police Service Headquarters.(6)A detainee may receive food brought by relatives or friends and any food, receptacles or utensils shall be examined before being handed to the detainee and withdrawn immediately after use.22.Handling of female detainees(1)When handling a female detainee, a police officer shall apply the following procedure—(a)when a police officer arrests a female suspect without warrant, accused of an offence other than murder or treason, and who the police officer considers not to pose a risk, and that it is not possible to bring her before a court at once, the officer shall, if possible, release her on bail or bond and the amount of such bail or bond shall be fixed with due regard to the circumstances of the case;(b)a police officer may detain a female offender in custody only when absolutely necessary, and in no case may a female be detained for a petty offence;(c)a female detainee brought to a police station in a state of intoxication may only be detained until she is sufficiently sober to be released on cash bail or bond;(d)where it is impracticable for any reason for a police officer to release a female detainee from police custody, the police officer shall apply the following instructions—(i)a female police officer shall thoroughly search the female detainee with strict regard to decency, privacy and the true gender of the detainee;(ii)where a female detainee complains of illness or injury or appears to be unwell or injured, the services of another woman shall be obtained to visit and assist her;(iii)a male police officer shall not enter cells meant for holding female detainees unless accompanied by a female or another police officer;(iv)the officers-in-charge of a police stations shall ensure that not less than two police officers are always on duty at the police station; and(v)the door of the cells meant for holding female detainees shall be secured by two locks and each of the two police officers on duty shall retain possession of the key to one lock only;(e)where no female police officer is present at the police station the services of an adult female shall be obtained to deal with female detainees;(f)a police officer shall question all female detainees on arrival at the Police Station, to ascertain if they have any children or dependants in need of care and protection in case the female detainee is not released on cash bail or bond, and where children or dependants exist, appropriate follow up action may be taken;(g)a female police officer with strict regard to decency and privacy shall inform all female detainees that sanitary towels are available and if in need a female detainee may be issued with two sanitary towels at a time; and(h)where practicable female police officers shall be part of the escort for female detainees when being escorted from police station to the court.23.Handling child offenders(1)A police officer shall apply the following procedure when handling child offenders—(a)a police officer shall strictly observe the provisions of the Children Act when handling child offenders;(b)a police officer inquiring into a case where an offender under the age of eighteen years has been arrested with or without a warrant and cannot immediately be brought before a court of law, shall unless—(i)the charge is one of murder or manslaughter or other grave crime;(ii)it is necessary in the interests of the offender to isolate the offender from associating with an undesirable person; or(iii)the police officer has reason to believe that the release of the offender would defeat the ends of justice, release the offender, on a recognizance being entered into by the offender’s parents or guardian or other responsible person, with or without sureties, for such amount as in the opinion of the police officer, secure the attendance of the offender in court;(c)an accused persons who is apparently under the age of eighteen years shall not be confined in the same cells as adult prisoners, either male or female.(2)Where a police officer arrests a person under the age of 18 years the police officer shall immediately inform the parent or guardian of the offender when possible.24.Treatment and custody of intoxicated offender(1)An offender found unconscious, insensible or smelling alcohol shall be examined by a medical officer to check for any illness.(2)The Officer-in-Charge of a police station or other police officer instructed by him or her shall visit an intoxicated offender at least once every two hours and an entry to that effect made in the Occurrence Book.(3)The Officer–in-Charge of a police station may release an intoxicated offender on bail or bond once the offender is sober, unless there are reasons to the contrary.25. Property of the detainee(1)A police officer shall list and keep in safe custody all articles including cash taken from an arrested person.(2)All monies shall be placed in an envelope, sealed and a note of the contents and the case file or detainee’s property receipt number shall be recorded on the outside of the envelope which shall be kept in a safe or cash box provided for this purpose.(3)The police officer shall issue a detainee’s property receipt in respect of property of each detainee.(4)A police officer who fails to record a detainees property in the detainee’s property receipt book as well as those who record but fail to surrender the receipt to the detainee on release shall be guilty of a disciplinary offence.(5)The detainee shall check the articles at the time they are taken from him or her, and again when they are returned.(6)When owing to intoxication or other reasons, a detainee is unable to check his property at the time of search, such property shall be checked by two police officers and the detainee shall be asked to check it as soon as he or she is capable of doing so.(7)When a detainee is released from custody, his property shall be returned to him on presentation of the original copy of the detainee’s property receipt and his signature or thumb print placed in the appropriate place on the receipt.(8)This Order applies whenever a prisoner is removed from physical custody at a police station when being released, sent to court or being escorted to another station.(9)The property of a detained person shall be handled as follows—(a)all the property belonging to a detainee shall be recorded in a detainees' property receipt book which shall be an accountable document and shall be maintained and inspected in the same way as a cash book;(b)when a detainee is transferred from police custody to prison custody and leaves property in the possession of the police, the property shall be safeguarded or disposed with the detainee’s consent to a person known to the detainee;(c)if disposal under h (b) is not possible, the officer-in-charge of the police station shall label the property with the name of the owner, his prison number, probable date of release from prison and the case file number;(d)the officer in charge of a police station shall inform the officer-in-charge of the prison to which the detainee has been committed that the property is in his possession and a copy of the letter filed in the relevant case file;(e)when the detainee is released from prison the officer-incharge of prison shall hand over the property from the police station and, at the inform the officer-in-charge of police station concerned of the date of release;(f)in cases where a detainee's home is outside the sub-county where the detainee was serving his prison term and where he has left bulky property, the officer-in-charge of the prison shall, not less than one month before the prisoner is released, notify the officer-in-charge of the relevant police station, requesting him to forward the detainee's property to the police station nearest to the detainee's home;(g)if the property is not reclaimed by the detainee within one month from the date of his release, the officer-in-charge of the police station shall treat such property as unclaimed and act in accordance with the provisions of the National Police Service Act (Cap. 84);(h)an inventory or description of a detainees property presented before a magistrate shall state the circumstances that led to the acquisition of such property by the police; and(i)all lost and found property shall be recorded in the Lost and Found Property Register with a clear notification that such property is being held pending collection by the owner, and as such shall not be proclaimed.26.Taking fingerprints. The circumstances in which detainees in police custody shall be finger printed are as provided in Appendix 15(a).27.Remand detainees(1)Except where special arrangements exists, all remand detainees in prison custody required to be produced in court shall be taken into police custody at the prison and remain in such custody until returned to the prison or discharged by the court.(2)If a detainee is further remanded or committed for trial or sentenced to a term of imprisonment, he or she shall be returned to the prison custody with relevant court warrant.(3)A convicted detainee who is required to be produced before court as a result of a production order is the responsibility of the prison officers and shall be in their custody.(4)Detainees on remand or those committed for trial and who are required to appear before the Superior courts, or Subordinate courts shall be brought and held in respective court cells manned by prison officers and their subsequent production before the appropriate court shall be the responsibility of the prison officers.(5)A detainee discharged by the court shall not be released until it has been ascertained that there are no further charges pending against him or that he or she is not serving a prison sentence.(6)Where a detainee is facing more than one charge, the Officer-in-Charge of the Police Station or investigation shall endorse the particulars of all charges in red ink on the case file cover or charge sheet, if it is a petty charge case, and cross reference them against each other to ensure that in the event of the prisoner being acquitted or discharged in one case he or she is not set free but remanded further to answer the other outstanding charges.(7)Remand warrants shall be checked against the prisoners before the detainees are taken over by the police and signed for in the Remand Disposal Register maintained by the prisons authorities.(8)Detailed instructions concerning the custody of remand prisoners shall be embodied in local Standing Orders.28.Remand in police custody. A request to the court for a prisoner to be remanded in police custody shall only be made on the authority of the officer-in-charge of the sub-county and only in the circumstances enumerated in section 205 and 236 of the Criminal Procedure Code.29.Inquiry into allegations of ill treatment(1)Any allegation of ill treatment of prisoners, or of witnesses or other persons, or any suggestion of harsh or oppressive treatment by a police officer shall be the subject of an immediate inquiry, and where the facts warrant, disciplinary action or court proceedings shall be instituted against the police officer concerned.(2)An Officer-in-Charge of police stations shall be constantly on the alert to prevent any instances of ill treatment, which are detrimental to the good relation with the public and contrary to the police tradition.(3)Where a detained person dies in custody, the officer in charge of the police station shall notify the Independent Policing Oversight Authority and any other body required by law to be so notified for purposes of investigation.30.Escape from police custody(1)Detainees in police custody shall be strictly guarded to ensure no detainee may escape.(2)Every escape from police custody shall be the subjected to an immediate inquiry and an inquiry file shall be opened containing all details including the finding and subsequent action taken. 68.The Superior Courts of Kenya have consistently affirmed that Police hold the primary Constitutional duty to investigate reported crimes. While Police investigate the Director of Public Prosecutions holds the exclusive mandate to prosecute, ensuring that investigative and prosecutorial roles operate independently but collaboratively. In the case of Republic v Commissioner of Police and Another ex parte Michael Monari & Another [2012] the Court held in brief inter alia as follows:That the Police have a legal duty to investigate any complaint once it is made. They would be failing in their Constitutional mandate to detect and prevent crime if they did not do so. 69.In addition, the Court in Philomena Mbete Mwilu v D.P.P & 3 Others [2019] eKLR where the learned judge stated that:“ 314.With regard to the process or manner of the conduct of investigations, the court in Josephat Koli Nanok & Another v Ethics & Anti-Corruption Commission (supra) went on to consider what an investigation process might entail. It stated that the person subject of the investigation would be entitled to fair administrative action, so that before a decision is taken for the prosecution of the suspect, the investigative agency must observe that person’s rights by granting him or her the opportunity to respond to the allegation. It was observed that there would be as a matter of course, a preliminary inquiry, conducted internally, before the formal investigations, and that it should be at the formal investigation stage that the suspect is entitled to be heard.” 70.The Constitution of Kenya under Article 24 on limitation of rights and fundamental freedoms provides inter alia as follows:(1)A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including--(a)the nature of the right or fundamental freedom;(b)the importance of the purpose of the limitation;(c)the nature and extent of the limitation;(d)the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and(e)the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.(2)Despite clause (1), a provision in legislation limiting a right or fundamental freedom --(a)in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation; (b) shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.(3)The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied. 71.The legal framework within which this issue falls to be determined is well settled. Article 49(1) of the Constitution of Kenya 2010 provides in material part as follows:(1)An arrested person has the right—(a)to be informed promptly, in a language that the person understands, of—(i)the reason for the arrest;(ii)the right to remain silent; and(iii)the consequences of not remaining silent;(b)to remain silent;(c)to communicate with an advocate, and other persons whose assistance is necessary;(d)not to be compelled to make any confession or admission that could be used in evidence against the person;(e)to be held separately from persons who are serving a sentence;(f)to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or (ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;(g)at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and(h)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.(2)A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months. 72.It is not only the National Police Service Standing Orders which provides a framework on the processes of arrest, detention or interim release of a suspect or accused person, there are also more substantive provisions in the Criminal Procedure Code CAP 75 of the laws of Kenya and in perspective the following provisions are applicable in so far as this petition is concerned. Sections 21, 22 and 29 of the Criminal Procedure Code; Thus:Section 21: In making an arrest the Police Officer or other person making it shall actually touch or confine the body of the person to be arrested, unless there be a submission to custody by word or action. (2) If a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.Section 22: (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of that place shall, on demand of the person so acting or the police officer, allow him free ingress thereto and afford all reasonable facilities for a search therein. (2) If ingress to a place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter the place and search therein, and, in order to effect an entrance into the place, to break open any outer or inner door or window of a house or place, whether that of the person to be arrested or of another person, or otherwise effect entry into the house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Provided that if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public, the person or police officer shall, before entering the apartment, give notice to the woman that she is at liberty to withdraw, and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it.Section 29: A police officer may, without an order from a magistrate and without a warrant, arrest— (a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence; (b) any person who commits a breach of the peace in his presence; (c) any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody; (d) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing; (e) any person whom he suspects upon reasonable grounds of being a deserter from the armed forces; (f) any person whom he finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony; (g) any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself; (h) any person whom he suspects upon reasonable grounds of having been concerned in an act committed at a place out of Kenya which, if committed in Kenya, would have been punishable as an offence, and for which he is liable to be extradited under the Extradition (Contiguous and Foreign Countries) Act (Cap. 76) or the Extradition (Commonwealth Countries) Act (Cap. 77); (i) any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking; (j) any released convict committing a breach of any provision prescribed by section 344 or of any rule made thereunder; (k) any person for whom he has reasonable cause to believe a warrant of arrest has been issued. 73.Whether one is approaching the interpretation of Article 49 purposively, literally or contextually there are certain Constitutional dictates which must be adhered to by National Police Service through its employees, agents or servants when it comes to exercising the power of arrest whether with or without a warrant. The officer is bound to produce the accused or suspect within 24 hours of his or her detention before a Magistrate excluding the time taken for travelling from the place of their arrest to the nearest Magistrate’s Courts. It is also crystal clear that a suspect under arrest does not extinguish his or her rights to consult with an Advocate of his or her own choice including having a conference or a meeting with that Advocate of his or her own choice during the process of arrest and interrogation. The right to consult a legal Counsel for any person alleged to have committed an offence has a right to be defended by that legal Counsel of his or her own choice and if substantive injustice is likely to occur the State is mandated to provide and guarantee that right. 74.Article 29 of the Constitution further provides that every person has the right to freedom and security of the person, which includes the right —“(a)not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial, except during a state of emergency..." 75.The Respondents submit that the arrest was effected pursuant to Section 29 of the Criminal Procedure Code (Cap 75), which empowers a Police Officer to arrest without a warrant any person whom the Officer reasonably suspects to have committed a cognizable offence. They contend that the complaint disclosed cognizable offences under the Computer Misuse and Cybercrimes Act 2018, namely cyber harassment and publication of false information contrary to Sections 22 and 23 of the Act respectively, and that the threshold for a warrantless arrest is reasonable suspicion and not conclusive proof. They further submit that an Arresting Officer need not have completed investigations or obtained irrefutable evidence before effecting an arrest, so long as there is a factual basis amounting to probable or reasonable cause. 76.The significance of rights of an arrested person are not only recognized in our Constitution as outlined above but also within the scope of international law as expressly stated in Article 2(5) (6) of the Constitution. These Regional and International instruments are now part of Kenya’s law as can be seen shortly by sampling some of the key provisions. In Article 9 of Universal Declaration of Human Rights it provides for the rights against arbitrary arrest, detention or exile, whereas in Article 10 it provides for full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his or her rights and obligations and of any criminal charge against him or her. Likewise in Article 11(1) it provides for the right to be presumed innocent until proven guilty according to the law in a public trial at which he/she has had all the guarantees necessary for his or her defence. In terms of the International Covenant on Civil and Political Rights it provides for the enjoyment of civil and political rights. In Article 9 of this treaty, right to liberty and security of the person is expected to be protected and guaranteed. Similarly, in Article 17 freedom from arbitrary or unlawful interference of the person is also protected. 77.The Kenya Constitution in Article 31 protects the right to privacy. In the persuasive case of Boyd v United States (1886) the Supreme Court of United States expressly held as follows:“The very essence of Constitutional liberty and security is affected by all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal liberty, personal security, and private property. 78.This Court accepts the general proposition that the threshold for a warrantless arrest is one of reasonable suspicion and not proof beyond reasonable doubt. The Court of Appeal affirmed this position in Commissioner of Police & the Director of Criminal Investigation Department & Another v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR, where the Court held that:“The police have a duty to investigate on any complaint once that complaint has been made to the respective police stations or director of Criminal Investigations across the country (underlined emphasis mine). Indeed, the police will 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 then left to the prosecution and the trial Court. The predominant reason for the institution of the criminal case cannot therefore be said to be an infringement of the fundamental rights and freedoms of the Petitioners but it is for the public interest and vindication of the criminal justice system. As long as the prosecution and those charged with the responsibilities of making the decisions to charge, act in a legal, regular, with propriety and in a reasonable manner the High Court would be reluctant to invoke the provisions of Art. 165(6) & (7) of the Constitution to intervene in the making of those decisions to grant the prerogative writs of prohibition or certiorari.”“In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.” 79.Similarly, in Republic v Commissioner of Police and Another ex parte Michael Monari & Another [2012] eKLR, the Court expressed itself as follows on the duty of the police to investigate complaint:“The police have a duty to investigate on 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." 80.However, the duty to investigate a complaint does not license the police to arrest a suspect before investigations are conducted and in the hope that evidence will emerge after the arrest to justify what was done. In Michael Rotich v Republic [2016] eKLR, Justice Kimaru held with clarity that:“The police should only arrest a person when they have prima facie evidence that an offence has been disclosed which can result in the person being charged…… The recent trend where a person is arrested and arraigned in Court within 24 hours specifically for the prosecution to seek extension of time to continue to detain such person, without any charge or holding charge being preferred against such person is unconstitutional. The police have no authority in law to arrest and detain any person without sufficient grounds." 81.These words are of direct application to the facts of the instant case. The Petitioner was arrested on the night of 27th June 2023. He was not charged upon his first production before the Honorable C.A. Kutwa SPM on 29th June 2023. Instead, the 2nd Interested Party filed Miscellaneous Criminal Application No. E032 of 2023 seeking to hold the Petitioner for a further seven days pending completion of investigations. The learned Senior Principal Magistrate granted four days. When those four days expired on 4th July 2023, the outcome was not a charge sheet. It was not a forensic report. It was not a single statement of any of the "vital witnesses" whose statements the 3rd Respondent had specifically relied upon in seeking extended detention. It was an application by the DPP to discharge the Petitioner, which the Court granted. The investigation, such as it was, had collapsed entirely for want of the very digital evidence the Respondents sought but could not lawfully obtain, having gone to the Petitioner's residence without a search warrant. 82.The basic question whether privacy is a right protected under our Constitution requires an understanding about what privacy means. The elements are not in doubt under Article 31 of the Constitution. For it is when we understand what interests or entitlements privacy safeguards that we can determine whether the Constitution protects privacy. Given the provisions of Article 31 of our Constitution any Police Officer or authorized Security Agency which are also constitutional organs of State should contour the following indicators though not exhaustive before arriving at a decision to impair or limit the rights to privacy:a.Whether there is a constitutionally protected right to privacy in Kenya.b.If the answer to the above is in the affirmative that there is a constitutionally protected right, a Police Officer of a Security Agent should then proceed to ask himself or herself whether the facts at hand have the character of an independent fundamental right or whether they arise within the existing guarantees of protected rights such as right to life under Article 26 and personal liberty in Article 29 of the Constitution.c.Whether the doctrine of foundation of the claim to right to privacy when juxtaposed to the facts of the case that right can be limited within the prism of Article 24 of the Constitution.d.Whether the intimated search piercing the right to privacy on the registered offences or information under investigation would violate the fundamental rights of the suspect or offender or accused under Article 50 (2)(a) on the right to be presumed innocent until the contrary is proved, (h) on the right to choose and to be represented by an Advocate and be informed of this right promptly, which also corresponds with Article 49(1) (c) on the rights of arrested person to communicate with an Advocate and other persons whose assistance is necessary, in furtherance to this Article 50 also provides as follows: That an accused or a suspect of an offence has a right to refuse to give self-incriminating evidence and finally, he has a right to the illegally obtained evidence to be excluded as part of the trial bundle in the proceedings. It is trite that obtaining incriminating evidence by an illegal search and seizure violates Articles 24, 25(c), 27(1), 28, 31, 47, 48 and 50 of the Constitution cumulatively. Tracing the letter and the spirit of our Constitution even the provisions for searches of suspects which impairs their rights to privacy contained in our successive enactments of the Criminal Procedure Code ought to be revisited by Parliament to bring them in tandem with the enforcement of rights and fundamental freedoms of the citizens of Kenya. It is their constitutional entitlement; it cannot be taken away at whim or capriciously or arbitrarily. Let us get this rights, search and seizure perse should not be seen as unconstitutional. It is noncompliance with the demands of the Constitution and the Statute by those vested with the responsibilities that renders it unconstitutional. 83.The Constitution under Article 27 guarantees the right to equality before the law and reading in and reading out of the provisions under the Criminal Procedure Code, the fair trial rights are incorporated to give effect to the right to a fair trial in an open forum. These provisions are designed to ensure that convictions are not obtained in secrecy unless where exceptional circumstances may demand that a trial may be held in camera. 84.The 4th Respondent concedes in his replying affidavit that the Officers did not have a search warrant. He explains that this is precisely why they could not confiscate the gadgets they needed for forensic examination, and that once the Court ordered the return of the house keys to the Petitioner's family, any prospect of recovering that evidence was lost. It confirms that they proceeded to arrest a citizen and initiate a criminal process without first securing the foundational evidence upon which the investigation depended. 85.It is my considered view that despite several attempts being made by issuing guidelines under the National Police Act as construed with the National Police Standing Orders and various jurisprudential decisions by the Superior Courts so as to eradicate the possibility of infringement or violation provided for in the Bill of Rights under Chapter 4 of the Constitution or committing torture by the Police Officers against suspects of crime there is still instances of atrocities and custodial deaths in those holding grounds within the Police Stations. In fact part of the guidelines in the National Police Standing Orders there are very clear guidelines and obligations between the Police Officer executing an arrest and the suspect alleged to have committed a crime cognizable under our penal law. One can be able to attest to the fears, anxiety and apprehension by the citizens of Kenya whenever they are summoned to the Police Station to clarify some issues on a complaint which has been reported and recorded in the Occurrence Book. The person so summoned seeks refuge before the High Court for anticipatory bail. That fear from the few applications I have dealt with sometimes it is real. I have found no compelling evidence as why a suspect once apprehended by the Police should be allowed to contact the next of kin, a family member or a friend so that he/she can be accompanied by that family member or next of kin, unless otherwise the alleged offence is against the State security. 86.This is not a problem specifically for Kenya on the rights of an arrested person being under threat of infringement or violation for that matter during the exercise of the powers conferred by the Statute upon the National Police Service. This comparative dicta in the case of Pankaj Bansal criminal Appeal @ SLP (Crl.) 13320 of 2024 in which the Court emphasized that:“ 42.That being so, there is no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. There are two primary reasons as to why this would be the advisable course of action to be followed as a matter of principle. Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance in this regard. In the case on hand, that is the situation insofar as Basant Bansal is concerned. Though ED claims that witnesses were present and certified that the grounds of arrest were read out and explained to him in Hindi, that is neither here nor there as he did not sign the document. Noncompliance in this regard would entail release of the arrested person straightaway, as held in V. Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51: (2024) 2 SCC (Cri) 1]. Such a precarious situation is easily avoided and the consequence thereof can be obviated very simply by furnishing the written grounds of arrest, as recorded by the authorized officer in terms of Section 19(1) PMLA, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorized officer. 43. The second reason as to why this would be the proper course to adopt is the Constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the court under Section 45 to seek release on bail, if he/she so chooses. In this regard, the grounds of arrest in V. Senthil Balaji [V. Senthil Balaji v. State, (2024) 3 SCC 51: (2024) 2 SCC (Cri) 1] are placed on record and we find that the same run into as many as six pages. The grounds of arrest recorded in the case on hand in relation to Pankaj Bansal and Basant Bansal have not been produced before this Court, but it was contended that they were produced at the time of remand. However, as already noted earlier, this did not serve the intended purpose. Further, in the event their grounds of arrest were equally voluminous, it would be well-nigh impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read by or read out to him/her. The very purpose of this Constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the Constitutional requirement under Article 22(1) and the statutory mandate under Section 19(1) PMLA.” 87.This case resonates well with the facts of this petition for the star witness Inspector Andolo who on oath told the Court that the complainant was a Personal Assistant to the 1st Respondent whom the Court was informed is the Permanent Secretary National Treasury. The complaint was about a defamatory statement in the social media platform published by the Petitioner disparaging and defaming the 1st Respondent. The grounds of arrest in plain language of the evidence came through a proxy of the victim of defamation. 88.The Criminal Procedure Code Cap 75 of the Laws of Kenya does not define the phrase ‘complainant’. However, in literal interpretation a person who makes a criminal complaint is called a complainant and the one who usually begins the process of a criminal case by filing a complaint with the National Police Service which in the first instance must be booked in the Occurrence Book. In the province of civil law, the complainant is the Plaintiff. It is trite that if an individual has no knowledge of criminal or suspicious behavior they are required by law to report this information to the Police. The person who initiates a complaint on a criminal offence becomes the complainant and must give law enforcement agencies accurate information as what they believe or know about the alleged offence. In our criminal administration of justice the complainant is typically the person who signs a statement saying that someone else out there did unlawful act that constitutes a crime within the statutory penal regime of Kenya. That complaint forms the basis of investigations by the National Police service and subsequently if there is prima facie evidence an arrest is effected against the suspect. 89.This is a Constitutional democratic Republic governed by the rule of law and guarantees of protection under the Bill of Rights in Chapter 4 of the Constitution. The nature of our criminal justice system is that the presentation of the rights and liberties of the Kenyan citizens among other interests can be a double-edged sword. This is so to say that much as a Nation or State is interested in apprehending, arraigning and possibly prosecuting criminals to sustain a conviction and place them behind bars it is also Constitutionally dictated that the right to presumption of innocence until the contrary is proved under Article 50(2) of the Constitution is not wished away or taken as a plain statement without weighty guarantees to be ringfenced by the State. This is more so since under Article 29 of the Constitution, there is preservation of personal liberty which cannot be deprived of an individual without justifiable excuse. 90.Undoubtedly, the Petitioner was arrested, investigated and finally a decision to charge was made by the Director of Public Prosecution under Article 157(6) & (7) of the Constitution for alleged offence of cyber harassment and publication of false information contrary to Section 27(1) (a) (b) (c) as read with section 27(2) of the Computer Misuse and Cyber Crime Act; contrary to Section 23 of the said Act. The power of the Director of Public Prosecutions to institute criminal proceedings against any person is an absolute one as provided for under Article 157(10) which expressly states that:The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. 91.This discretion is not fettered in any way. The discretion to prosecute, who to prosecute and where the commence criminal proceedings against any person is the Director of Public Prosecution and him alone. He has no obligation to give reason for exercising his discretion in a particular way. The truth is that there is a presumption that underlines any exercise of any discretion or prerogative exercisable by the Director of Public Prosecution that such a discretion is and could always be guided by the public interest. It goes without saying therefore that consideration of public interest and policy which the Director of Public Prosecution’s discretion represents and subsumes the interest of the victim and also the fair administration of justice to promote the rule of law by punishing crime where the context necessitates such action be taken. The question then is, ‘what becomes of a criminal proceeding like in the instant case where the real complainant never made it to the Police Station to record a statement which could have formed the basis for the National Police Service to commence investigation?” Was there diligent prosecution to satisfy the public interest so as to meet the ends of justice? In my view, the answer from the Investigating Officer Mr. Andolo was very sketchy. In the rejoinder to the petition shared with the Court there was no trial bundle which constituted the investigation of the Petitioner and the witness statements recorded by the Complainant and other independent witnesses to meet the threshold of the decision to charge the Petitioner under Article 157(56) & (7) as read with (10) of the Constitution the rationale is that there is no point in going on with a prosecution where there is no witness or complainant as it will be impossible to convict a suspect who is presumed innocent until the contrary is proved under Article 50(2) (a) of the Constitution. This is actually what happened to the Petitioner in this case. This is what one can describe as a stillbirth kind of criminal process. 92.The Court emphasized in the case of JR No. of 2017 R V DPP & 2 Others Ex-Parte Edwin Harold Dayan Dande & 3 Others in which it observed as follows:“ 39.A reading of Article 157 of the Constitution leaves no doubt that the DPP is required to not only act independently, but to remain fiercely so. It is also important to mention that Article 245 (4) (a) of the Constitution provides that: "no person may give a direction to the Inspector General with respect to the investigation of any offence or offences." Just like the Constitutionally guaranteed independence of the DPP, this provision is aimed at ensuring that investigations are undertaken independently.” 93.My reading of this record as to what transpired before the trial Court is better explained by the decision of the Supreme Court in Institute for Social Accountability & Another v National Assembly & 3 Others (Petition 1 of 2018) [2022] KESC 39 (KLR) (8 August 2022) (Judgment) in addressing mootness stated that:“…a matter is moot when it has no practical significance or when the decision will not have the effect of resolving the controversy affecting the rights of the parties before it. If a decision of a court will have no such practical effect on the rights of the parties, a court will decline to decide on the case. Accordingly, there has to be a live controversy between the parties at all stages of the case when a court is rendering its decision. If after the commencement of the proceedings, events occur changing the facts or the law which deprive the parties of the pursued outcome or relief then, the matter becomes moot.” 94.This is what can be deduced from the criminal charge preferred by the Office of the Director of Public Prosecution against the Petitioner and such parameters are better explained by the persuasive case from the Supreme Court of India in RP Kapur v State of Punjab AIR 1960 SC 866 which succinctly laid down the following guidelines in which such a decision can be reviewed by the Court:a.Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; orb.Where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; orc.Where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; ord.Where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 95.This petition scrutinizes the prosecutorial mandate of the DPP under Article 157 of the Constitution of the Republic of Kenya. The litigation addresses scenarios where the National Police Service or for that matter State machinery and prosecutorial powers are utilized without sufficient evidence to substantiate criminal intent exploring how wrongfully initiated criminal proceedings violate the right to a fair hearing under Article 50 and limitation of personal liberty under Article 29 of the Constitution. There is legitimate expectation from the citizens of Kenya that under Article 157(6), (7), (8), (9) & (10) of the Constitution the DPP’s decision to proceed with the criminal charge or charges must be grounded in credible and substantial evidence and the Courts reserve the right to acquit or dismiss indictments before or at the close of the prosecution’s case if no prima facie evidence has been established. 96.Just as a reminder to the organs of State as duly constituted in the Constitution 2010, it is a transformative charter unlike the one which was interim by its very nature in the earlier decades which essentially centralized legitimization of power in few institutions which sometimes appeared to be absolute. The new Constitution which was negotiated for many decades is a transformative instrument which is predominantly tailored to institute social change and reform, through values such as social justice, equality, devolution, human rights, non-discrimination, rule of law, freedom and democracy as fleshed out in Article 10 of the Constitution on national values and principles of governance. The Constitution further provided for a progressive Bill of Rights under Chapter 4 of the Constitution which places the burden of interpretation by Courts that most favours the enforcement of a right or fundamental freedom. This is the legal battleground between the Petitioner and the Respondents with regard to the view he holds that by his arrest, detention and ultimate prosecution was a violation of his fundamental rights and freedom under the Constitution. One of the core purposes of the Constitution of 2010 is the protection of the Bill of Rights to preserve human dignity of individuals and communities, all human beings are born free and equal in dignity and rights. 97.This is further demonstrated by Superior Courts on invalidation of an arrest of suspects in the following cases:Isaac Tumini Ngungi v Inspector General of National Police Service & 2 Others [2020] eKLR, the High Court held that arrests must include immediate notification of rights under Article 49, emphasizing that failure to inform suspects promptly renders the arrest unConstitutional. The court underscored the need for "prompt" information to enable informed decisions, diverging from prior interpretations allowing delays. Similarly, in Mwaura v Republic [2024] KEHC 6362, the High Court affirmed that arrests without warrants must be subject to Article 49, referencing Section 58 of the National Police Service Act, which authorizes warrantless arrests for cognizable offences. The case highlighted the 24-hour production requirement, ruling that extended detention without court appearance violates Constitutional rights and may warrant damages. Susan Michael Kariuki v OCS, Diani Police Station & 2 others (2024): This case illustrates instances where the High Court addressed the unlawful deprivation of liberty stemming from malicious or fabricated allegations resulting in wrongful arrest. David Kinuthia Kariuki [2017] KEHC 8333: The Court set standards regarding the separation of powers, outlining when the High Court can intervene if the police and the Director of Public Prosecutions (DPP) abuse the legal process for non-prosecutorial advantages. Finally, in Chebor v Karuri, Chief Inspector OCS Mochongoi Police Station & Others [2025] KEHC 5485, addressed unlawful detention beyond eight hours without charge, declaring it a breach of Article 49(f) and awarding compensation. The court reiterated that arrests must follow procedural safeguards in the Criminal Procedure Code to prevent abuse. 98.This Court accordingly finds that the arrest of the Petitioner and his prolonged detention, totaling approximately seven days inclusive of the initial thirty-six-hour detention and the subsequent four-day Court-sanctioned remand, was not anchored on sufficient grounds and amounted to a deprivation of liberty that was arbitrary and without just cause within the meaning of Article 29(a) and (b) of the Constitution. Whether the Petitioner's rights under Articles 28, 29, 31 and 49 were violated 99.Having found that the arrest and detention of the Petitioner lacked sufficient legal foundation, the Court turns to consider the specific Constitutional rights alleged to have been violated. 100.In Kenya, wrongful arrest and detention are primarily addressed through Constitutional and statutory remedies. Article 29 of the Constitution of Kenya, 2010 prohibits arbitrary arrest, while Articles 22 and 23 provide a basis for victims to seek redress in court, often in the form of compensation. Courts have awarded damages to vindicate rights and deter state misconduct. However, remedies are largely reactive, available only after judicial proceedings, and victims often face barriers such as delays in the justice system, high litigation costs, and the risk of retaliation when reporting police misconduct. 101.On the right to be informed of the reasons for arrest, the Court in Michael Rotich v Republic [2016] KLR stressed the provision of Article 49(1)(a)(i) of the Constitution, which requires any arrested person to be promptly informed in a language that he understands of the reasons for his arrest. The Petitioner avers that he was not informed of the reasons for his arrest or of the identity of the complainant. The Respondents deny this and depose that the Petitioner was duly informed. On this contested question of fact, it is noteworthy that the entire investigation ultimately yielded no charge and no evidence, suggesting that the basis for the arrest was itself uncertain. It would be inconsistent for Officers who were uncertain about the evidentiary foundation of the complaint they were acting upon to have communicated to the Petitioner with the precision and clarity that Article 49(1)(a) demands. 102.On the denial of bail, the Constitution under Article 49(1)(h) guarantees an arrested person the right to be released on bond or bail on reasonable conditions pending charge or trial, unless the Court orders otherwise. There is no evidence before this Court that a formal application was made to Court for the denial of bail during the initial thirty-six-hour detention. The Respondents' justification that the 28th June 2023 was a gazetted public holiday is not a sufficient answer. The existence of a public holiday does not extinguish the Constitutional right to bail. It may affect the logistics of processing bail, but it cannot operate as a blanket suspension of a fundamental right guaranteed under the Constitution. 103.In a similar situation which occurred in the United States of America the Petitioner moved the Supreme Court in the case of Manuel v City of Joliet (580 U.S. 357, 2017) held that an individual unlawfully held on false charges could bring a claim under the Fourth Amendment via §1983. The decision expanded the scope of remedies available for wrongful detention, ensuring that victims could pursue federal Constitutional claims beyond State tort remedies. This case illustrates that U.S. courts not only provide remedies but also actively expand access to redress, reinforcing accountability. 104.The Constitution of Kenya, 2010 provides in Article 40 that every person has the right to property and shall not be arbitrarily deprived of it. Article 29 further protects personal security, including freedom from arbitrary intrusion. Where state agents act unlawfully—such as conducting a search without proper authority or exceeding the terms of a warrant—remedies are available under Articles 22 and 23, including compensation. Courts have in such instances awarded damages, treating the harm as both a tort and a Constitutional violation. 105.As regards the confiscation of the Petitioner's house keys, the Respondents depose that the keys were confiscated as a routine measure to ensure the safety of persons in custody and would have been released upon request. This Court does not accept that explanation. The confiscation of a person's house keys, with the consequence that his wife and minor children are locked out of their home for a period of days, is not a routine custody measure. It is an act whose consequence was to extend the reach of the Petitioner's detention beyond his own person and into the lives of his innocent family members. Article 28 of the Constitution guarantees every person inherent dignity and the right to have that dignity respected and protected. The subjection of the Petitioner's family, particularly the minor children who were on mid-term break to homelessness as a consequence of a state action that ultimately yielded no charge, is a dimension of the indignity visited upon the Petitioner and his household that this Court cannot ignore. 106.In Stanley Kimathi Raini v Traffic Base Commander, Runyenjes Police Station & 5 others [2019] eKLR, the Court held that wrongful arrest involves the deprivation of a person's fundamental rights to dignity and security of the person, and that the indignity of an unlawful arrest is not confined to the physical moment of arrest but encompasses its broader consequences on the person. 107.From a Constitutional and statutory stand point the National Police Service and its employees are agents of the State executing their mandate under Articles 244 & 245 of the Constitution. That in exercising their powers as illuminated in the Constitution and the National Police Act to secure the right to life under Article 26 and property under Article 40 of their fellow citizens must do so lawfully without an overreach of jurisdiction. In Article 21 of the Constitution it obligates the State to observe, respect, protect and guarantee the right and fundamental freedoms as espoused in Chapter 4 on the Bill of Rights within our Constitution. That in doing so, any infringement or violation of the citizen rights during the performance or enforcement of their duties they should be held liable and for that matter the State shall be expected to compensate any such harm under the doctrine of vicarious liability. The claims by the Petitioner on violations under Articles 28 & 29 of the Constitution is not new as demonstrated by the following cases which found their way to the Court system and respective findings made in favour of the Petitioners seeking an award of damages for unlawful acts by Police Officers:In Koigi Wamwere v Attorney General [2015] eKLR, the High Court awarded the petitioner Ksh. 12 million for wrongful arrest, unlawful detention, and destruction of personal property, finding that state agents had violated his Constitutional rights. The court stressed that violations, even if committed in the course of state security operations, attract liability on the part of the state. Another example can be drawn from Peter M. Kariuki v Attorney General [2014] eKLR, where the Court of Appeal awarded damages for unlawful detention and related state actions, holding the government responsible for abuses committed by its agents. Though not explicitly about property damage, the principle applies: where state enforcement results in rights violations beyond what is lawful, the state must compensate the victim. By contrast, in Thomas Patrick Gilbert Cholmondeley v Republic [2008] eKLR, the court observed that the use of force by police must always be necessary and proportionate. While the case primarily concerned lethal force, it illustrates judicial insistence that state agents must act within the boundaries of law, and that excesses expose the state to liability. Where force, including property destruction, is lawfully applied, courts have been reluctant to impose compensation absent evidence of illegality. 108.The constitutional Courts in various decisions throughout Kenya which for purposes of this judgment I don’t have to sample the writings of the great jurists of this Republic presiding over this kind of petitions whose ethos fall within the scope of the Bill of Rights. In contributing to this constitutional debate it is settled law that constitutional Courts have placed dignity under Article 28 of the Constitution at the centre of the right to equality in Article 27 of the very same Constitution. Whether or not a particular law or conduct constitutes unfair discrimination is made to turn largely on the question whether it violates the Complainant’s or the Petitioner’s human dignity. When a prima facie case has been made out by the complainant or the Petitioner, the defence by the Respondent or Defendant justifications for the dignity-based interpretation of the right to equality includes the Court’s understanding, the evils of the past constituted first and foremost a denial of the dignity of the majority of the citizens. The past history of a country remains as a bedrock to build a better future for intergenerational economic, social, political, cultural rights all embodied in the ambit of human rights. In the late 1980’s one can remember the aggressive manhunt of individuals arrested and arraigned in Court on sedition charges some which were very critical to the governors of the country. The severity of the abuses and attack of the rule of law remains a historical sore point. Glory to the Kenyan people that the Kenya’s 2010 Constitution is inherently transformative designed to replace a history of inequality and authoritarianism with a framework emphasizing human dignity, personal liberty, freedom from torture and cruel, inhuman or degrading treatment or punishment, economic rights, political rights, plethora of the Bill of Rights in Chapter 4, devolution and strict constitutionalism. One of the greatest Jurists and now a Supreme Court Justice Lenaola once remarked in 2014: As Kenya enters the crucial phase of full implementation of the Constitution, pride of place must be given to constitutionalism. Both the written words of the Constitution and its silences must always be interpreted to enhance the common good, thus avoiding the term political interests, or institutional interests or personal interests.” (Underlined emphasis mine). 109.This Court is accordingly satisfied that the 3rd, 4th and 5th Respondents violated the Petitioner's Constitutional rights under Articles 28, 29(a) and (b), and 49(1)(a), (f) and (h) of the Constitution of Kenya 2010. Whether the 1st Respondent's conduct violated Articles 10 and 75(1)(c) 110.The prism through which liability for unlawful arrest, detention and prosecution of the Petitioner should be considered is through the Constitutional rights guaranteed in Articles 28 and 29 of the Constitution which provides that every citizen or person has a right to dignity, security and not to be arbitrarily deprived of freedom. The right not to be deprived of freedom arbitrarily or without just cause applies to all persons in the Republic of Kenya. These rights together to the right to human dignity are fundamental rights entrenched in the Bill of Rights now Chapter 4 of Constitution 2010. The State therefore is bound and is required to respect, protect, promote and fulfil these rights as well as all other fundamental rights. Incidentally, there are also part of the founding values under Article 10 of the Constitution upon which Republic of Kenya is build on since the new dawn of transformative Constitution imperatives during the rebirth of a new Kenya. 111.The National Police Service and the Director of Public Prosecutions like any other State functionaries provided for in the Constitution for that matter are constrained by the principle of legality imposed by the Constitution and they may not exercise any power or perform any function beyond that conferred by the respective Statute. Indeed in my view that is a basic component of the rule of law and one of the fundamentals in Article 10 on National Values and Principles of Governance. 112.This unlawful deprivation of liberty of the Petitioner by the National Police Service and aftermath effects classified as more time for investigations with its accompaniment of infringement of rights to human dignity and security of the person have always been regarded as particularly grave wrongs serious inroad into the freedom and rise of the person with no compelling evidence of justification by the State to limit those rights within the guidelines underpinned under Article 24 of the Constitution. This Court should not lose sight and must not be lost given the evidential material admitted herein by the Petitioner and the Respondents of the fact that the liberty of an individual is one of the fundamental rights of a human being in a free and Constitutional democratic society. Given our past Constitutional history which was described as the darkest era of our Constitutionalism, these rights should be jealously guarded at all times and there is a duty on our Courts to preserve these rights against infringement. I consider this petition and the evidence adduced by the Petitioner that although the Respondent witness a Mr. Andolo tried to justify the arrest of the Petitioner but never provided cogent evidence or a copy of the statement of complaint from the 1st Respondent that rejoinder only led this Court to one conclusion; that the unlawful arrest and detention constituted a serious inroad into the freedom and the rights of the Petitioner. The effect of this is a breach of all procedural and substantive violation of the rights and fundamental freedoms of the Petitioner. 113.This arrest of the Petitioner prima facie constituted interference to his dignity, security and his liberty and it was only fair for the witness from the National Police Service who investigated the matter and recommended for a prosecution to be mounted by the State to be fair and just to prove that there existed grounds in justification of the infraction in so far as the Petitioner’s case is concerned. 114.The facts of this petition having been reviewed by this Court are in tandem with the principles in the comparative law world in the case of Zealand v Minister for Justice and Constitutional Development [2008] ZACC 3: 2008 (2) SACR 1 (CC) in which the Court held as follows:“It has long been firmly established in our common law that every interference with physical liberty is prima facie unlawful. Thus, once the claimant establishes that an interference has occurred, the burden falls upon the person causing that interference to establish a ground of justification. In Minister van Wet en Orde v Matshoba, the Supreme Court of Appeal again affirmed that principle, and then went on to consider exactly what must be averred by an applicant complaining of unlawful detention. In the absence of any significant South African authority, Grosskopf JA found the law concerning the rei vindicatio a useful analogy. The simple averment of the plaintiff's ownership and the fact that his or her property is held by the defendant was sufficient in such cases. This led that Court to conclude that, since the common law right to personal freedom was far more fundamental than ownership, it must be sufficient for a plaintiff who is in detention simply to plead that he or she is being held by the defendant. The onus of justifying the detention then rests on the defendant. There can be no doubt that this reasoning applies with equal, if not greater, force under the Constitution. 115.The illuminating decision from the Superior Court in the case of R vs. Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No. 406 of 2001:“Although the state’s interest and indeed the Constitutional and statutory powers to prosecute is recognised, however in exercise of these powers the Attorney General must act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy without the recognised lawful parameters...The High Court will interfere with a criminal trial in the Subordinate Court if it is determined that the prosecution is an abuse of the process of the Court and/or because it is oppressive and vexatious...A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so. Where the material on which the prosecution is based is frivolous, it would be unfair to require an individual to undergo a criminal trial for the sake of it. Such a prosecution will receive nothing more than embarrass the individual and put him to unnecessary expense and agony and the Court may in a proper case scrutinize the material before it and if it is disclosed that no offence has been disclosed, issue a prohibition halting the prosecution. It is an abuse of the process of the Court to mount a criminal prosecution for extraneous purposes such as to secure settlement of civil debts or to settle personal differences between individuals and it does not matter whether the complainant has a prima facie case...A criminal prosecution will also be halted if the charge sheet does not disclose the commission of a criminal offence...In deciding whether to commence or pursue criminal prosecution the Attorney General must consider the interests of the public and must ask himself inter alia whether the prosecution will enhance public confidence in the law: whether the prosecution is necessary at all; whether the case can be resolved easily by civil process without putting individual’s liberty at risk. Liberty of the individual is a valued individual right and freedom, which should not be tested on flimsy grounds.” 116.The 1st Respondent is a Principal Secretary, a State Officer within the meaning of Article 260 of the Constitution. Article 75(1)(c) of the Constitution provides that a state Officer shall behave, whether in public and official life, in private life or in association with other persons, in a manner that avoids demeaning the office the Officer holds. To establish a violation of Article 75(1)(c), the Petitioner must demonstrate conduct by the 1st Respondent that discloses a conflict between personal interest and official duties, compromise of official or public interest, or demeaning conduct. 117.It follows that in Article 10(1) of the Constitution binds all state organs, state Officers and public Officers to the national values and principles of governance whenever they apply or interpret the Constitution, enact, apply or interpret any legislation, or make or implement public policy decisions. Under Article 10(2), those national values and principles include the rule of law, human dignity, equity, social justice, human rights and integrity. 118.The 1st Respondent's position is straightforward. He is a law-abiding citizen who reported a matter to the police on certain grievances touching on his reputation and professional calling. As a complainant and a Kenyan citizen he had every right under Article 27 on equality before the law to submit himself before any Station manned by the National Police Service and it is the Constitutional mandate for that organ to investigate the matter and make the necessary recommendations. 119.The Court has not been told whether he acted maliciously or influenced the decision making of both the National Police Service and the Office of the Director of Public Prosecution. The facts of this petition are distinguishable in so far as lodging the complaint to the Police Station is concerned. There is no complaint in the criminal justice system which should be acted by the National Police Service through proxy or nominee for any injury, harm or unlawful acts are usually individualized and in personam. In the entire trial the Court was never availed any complainant’s statement with regard to the information in the charge sheet against the Petitioner. In my view there is a legitimate expectation from the Kenyan people that the National Police Service delivering its mandate through the various directorates, formation, command, stations and respective employees must apply their mind to the circumstances relating to a person’s detention. This includes defending the Constitution more specifically in cases of this nature the Bill of Rights under Chapter 4 of the Constitution the question of whether detention is necessary at all to move a Magistrate’s Court for extension of time is one area which indeed requires interrogation. There is no dispute that an application was made to the Magistrate’s Court at Iten to detain the Petitioner further so as to investigate the alleged crime. Undoubtedly during the trial no such evidence was availed before this Court to confront the necessity of the orders issued by the Magistrate’s Court to detain the Petitioner which to me was taking away arbitrarily his right to freedom and liberty without justification. It is now trite under Article 10 of the Constitution that every decision and policy undertaken by the State Officers is informed by the Constitution. The Constitution values freedom and liberty as a right and understandably the National Police Service as a Constitutional organ must be at the forefront to secure those rights for the citizens of Kenya, for matters of security and prevention of crime they form the face of our Constitutional democratic ideals. The obligation imposed by the Constitution is that the 2nd, 3rd 4th and 5th Respondents and the 1st and 2nd Interested Parties are deemed by law to perform public functions and provide a public service of its own kind. The Constitution on Statute law by reasons of their positions are held accountable and that accountability is a value of governance under Article 10 of the Constitution. From the evidence adduced before this Court there was no justification for the period the Petitioner was detained, and arraigned in Court only for the allegations to be withdrawn by the Director of Public Prosecution. 120.The moment the Petitioner adduced evidence that he was arrested and detained unlawfully, the onus of rebuttal shifted to the 2nd, 3rd, 4th and 5th Respondents cumulatively with the 1st and 2nd Interested Parties to demonstrate that the Petitioner’s detention was for the interest of justice. There is nothing in the record to show that the named Respondents have satisfied that criterion by way of concrete evidence to dislodge the Petitioner’s claim. 121.The National Police Service has a duty and lawful as such to safeguard and protect the Constitutional rights of the citizens of Kenya. In this respect, am inspired by the principles in the case of Woji v Minister of Police [2014] ZASCA 108; 2015 (1) SACR 409 (SCA) in which the Court observed as follows:“The Constitution imposes a duty on the state and all of its organs not to perform any act that infringes the entrenched rights, such as the right to life, human dignity and freedom and security of the person. This is termed a public law duty. On the facts of this case, Inspector Kuhn, a policeman in the employ of the state, had a public law duty not to violate Mr. Woji's right to freedom, either by not opposing his application for bail, or by placing all relevant and readily available facts before the Magistrate. A breach of this public law duty gives rise to a private law breach of Mr. Woji's right not to be unlawfully detained, which may be compensated by an award of damages. There can be no reason to depart from the general law of accountability, that the state is liable for the failure to perform the duties imposed upon it by the Constitution, unless there is a compelling reason to deviate from the norm. Mr. Woji was entitled to have his right to freedom protected by the state. In consequence, Inspector Kuhn’s omission to perform his public duty was wrongful in private law terms.” 122.This Court accepts, as a general principle, that any citizen including a State Officer has the right to report a suspected offence to the police. The mere act of lodging a complaint does not, without more, constitute a violation of Article 75(1)(c) of the Constitution. However, the manner in which a state Officer exercises that right, and the purposes for which the criminal justice machinery is set in motion, are matters that fall within the scrutiny of this Court. In Kimunai ole Kimeiwa & 5 others v Joseph Motari Mosigisi (The Then District Commissioner Rongai District) & 3 others [2020] eKLR, the Court held that:“A public servant who travels outside the remit of his office and acts maliciously towards his fellow citizens and thereby inflicts actual injury or emotional distress to such citizens loses the personal protection and immunity afforded to him by virtue of his public office. Such an official is, in the famous Torts-speak, on a frolic of his own. On such a frolic, he should expect consequences of his actions; consequences which are not inoculated by either the Constitution or statutory law." 123.Incidentally, although the Court was told that the National Police Service through its Officers acted on a complaint primarily booked by the 1st Respondent with regard to the allegations which appeared to infringe his rights, no witness statement or summary of a complaint duly signed by the 1st Respondent found its way to this trial. The Respondents’ witness was emphatic that the report was made by the Personal Assistant to the 1st Respondent. In matters of criminal justice it is the complainant who has suffered harm or injury due to the unlawful acts of an offender who is entitled to visit the report office of a Police Station or any such office within the National Police Service with equal status to the commonly referred to as Police Station and have his or her report appropriately taken in and there after action be carried out within the protocols of the Police Service. It is all laid bare in the National Police Service Act as read together with the National Police Service Standing Orders. 124.The evidence before this Court establishes that the complaint was not made directly by the 1st Respondent but was transmitted through his Personal Assistant, Meshack Koima. The 4th Respondent confirms in his replying affidavit that it was Meshack Koima who contacted him on his personal mobile number, relayed the complaint and thereafter sent the screenshots of the alleged messages. The arrest was effected with remarkable speed on the very night the complaint was lodged. The investigation ultimately collapsed without a single charge being preferred. Most significantly, the Petitioner's averment that he was not a member of either of the WhatsApp groups on which the alleged posts were made, was not specifically controverted by any evidence placed before this Court. No membership list of the WhatsApp groups was produced. No forensic evidence was adduced. No screenshots were exhibited before the Court identifying the Petitioner as the author of the impugned posts. In the eyes of the law the 1st Respondent has never officially complained on the allegations affecting him as duly published by the Petitioner. Indeed the Director of Public Prosecution went ahead and made a decision to charge the Petitioner notwithstanding the lacuna. 125.From what I conceive as set out in the petition are the responses filed by the Respondents. It is apparent that the National Police Service as a State organ as a matter of constitutional principle is under duty to comply with the laws which has been put into place and in the aftermath of making appropriate decisions under Article 10 of the Constitution should ensure to protect the citizens and any such groups who may be seeking certain actions to be taken upon other persons who have limited their rights so that there is full protection of the Bill of Rights as guaranteed by the Constitution. It goes without saying in my view that if it is found necessary that a Police Officer must seek leave of the Court for further detention of a suspect so that some kind of investigations can be completed the Applicant, the Prosecutor and the Magistrate should remain mindful of the provisions of the Bill of Rights so clearly spelt out in our Chapter 4 of our Constitution. These extensions or enlargement of time by National Police Service to detain suspects so that investigations which are pending out there to be completed without any substantiation runs foul of Articles 22, 25(a), 27, 28 and 29 of the Constitution. In this country with a long history of independence and a constitutional democracy with a binder of the rule of law has a constitutional duty in all sector wide organs or institutions to act in a manner tailored for the protection of rights and fundamental freedoms in the Bill of Rights. 126.In Diamond Hasham Lalji & Another v Attorney General & 4 others [2018] eKLR, the Court of Appeal examined the improper use of prosecutorial discretion and stated that:“In Kuria & 3 Others v Attorney General [2002] eKLR 69, the High Court held, inter alia, that the machinery of criminal justice is not to be allowed to become a pawn in personal feuds and individual vendetta. In Republic v Chief Magistrate’s Court at Mombasa – ex parte Ganijee & Another [2012] 2 KLR 703, the High Court again held, amongst other things, that it is not the purpose of criminal investigation or a criminal charge or prosecution to help individuals in the advancement or frustration of their civil cases.” 127.The totality of the evidence points to a situation in which the criminal justice process was set in motion, through the agency of the 1st Respondent's Personal Assistant, against a person who had allegedly published critical remarks about the 1st Respondent in his community, remarks touching on his performance and conduct in public office. The avenue of civil defamation proceedings was available to the 1st Respondent. He chose instead to engage the police. The investigation yielded nothing. The Petitioner was discharged without charge. The 1st Respondent's conduct in causing the instigation of this criminal process was, in the circumstances, inconsistent with the national values of human dignity, the rule of law and integrity that Article 10 of the Constitution imposes upon state Officers, and falls short of the standard of conduct expected of a State Officer under Article 75(1)(c). 128.One of the most important challenges for the new constitutional order since the promulgation of the Constitution in 2010 is for institutions to re-establish respect for human dignity by addressing the inequities and unfair discrimination of the past. In the comparative perspective in the case of S v Williams (1995) SA 632 the Court observed:Measures that assail the dignity and self-esteem of an individual will have to be justified; there is no place for brutal and dehumanizing treatment and punishment. The Constitution has allocated to the State and its organs a role as the protectors and guarantors of those rights to ensure that they are available to all. In the process, it sets the State up as a model for society as it endeavors to move away from a violent past. It is therefore reasonable to expect that the State must be foremost in upholding those values which are the guiding light of civilized societies. Respect for human dignity is one such value; acknowledging it includes an acceptance by society that... even the vilest criminal remains a human being possessed of common human dignity. 129.In the instant petition as demonstrated that the State action on its face had an impact of creating a distinction on how he was treated during his arrest and further detention in custody based on enumerated or analogous grounds under Article 27(4) of the Constitution. There is no doubt in my view that adverse impact discrimination against the Petitioner violates the norm of substantive equality which underpins the Court’s equality jurisprudence. At the heart of substantive equality in our constitutional adjudication of petitions is the recognition that identical or facially neutral treatment may frequently produce serious inequality. This is precisely what happened when seemingly the police acted in excess of jurisdiction in executing their constitutional and statutory mandate of arresting, detaining and recommending a prosecution when there was no credible and cogent evidence as against the Petitioner. 130.The questions which kept on lingering when applying the equality clause under Article 27 of the Constitution include inter alia whether the provisions on arrest the National Police Service Act, the National Police Service Standing Orders and the Criminal Procedure Code on executing an arrest against any citizen suspected to have committed a crime differentiated between people or categories of people? If so, does the differentiation in those provisions and the conduct of the National Police Service on the material day effecting the arrest against the Petitioner bear a rational connection to a legitimate government purpose? If it does not then there is a violation of Article 27(1)(4) of the Constitution. In my view even if it does not bear a rational connection, as the evidence presented before this Court show that conduct by the Police Officers taking a decision to visit the homestead of the Petitioner, proceeded to conduct a search without a warrant and the Petitioner not accompanied by a next friend or its legal Counsel nevertheless amounted to discrimination. The provisions on Article 31 of the Constitution are very clear that everyone has the right to privacy which include the right not to have their person or home searched, their property searched, their positions seized or the privacy of their communication infringed. The evidence by the Respondent star witness failed to discharge the rebuttal burden of proof in consonant with Article 24 of the Constitution on limitation of rights and fundamental freedoms. 131.Basically this means that from a preliminary inquiry over comparative analysis on the evidence admitted by this Court from the Petitioner and that of the Respondent’s witness the impugned conduct differentiates between certain categories of suspects in which is not always the norm that a search of one’s home does not follow his or her arrest when suspected of a crime. This is a threshold test which mirrors in the entire of this petition. I am satisfied that the 2nd, 3rd, 4th and 5th Respondents have not discharged the onus of justification or put up a plausible explanation as to the purpose of the arrest of the Petitioner which was subsequently followed with the search in his private premises without a warrant. In the realm of common law, the breach of a person’s privacy constitutes an iniuria. Some of the examples of breaches explained by Petitioner in his testimony with regard to his privacy included entry to his private resident, the reading of his private documents and the intrusion to his household without prior notice and disclosure on why his rights to privacy are to be limited so that the National Police Service can conduct a search. The truism of the Constitution is that no right can be said or considered to be absolute implicit of the fact that from the outset of the interpretation each right is always analyzed within the limitation Clause of Article 24 of the Constitution. In this context I take the view in consonance with Article 31 of the Constitution that the inner sanctum over a person’s right to privacy inter alia family life, sexual orientation, home environment should be shielded from intrusion. For our case there is prima facie evidence of that intrusion on the right to privacy of the Petitioner. 132.Having found violations of Articles 28, 29(a) and (b), 31, 49(1)(a), (f) and (h) and Article 10 of the Constitution, the Petitioner is entitled to reliefs under Article 23(3) of the Constitution, which empowers this Court to grant appropriate relief including a declaration of rights, an injunction, a conservatory order, a declaration of invalidity of any law, an order for compensation and an order of judicial review. 133.The relevant principles applicable to award of damages for Constitutional violations under the Constitution was explained exhaustively by the Privy Council in the famous case of Siewchand Ramanoop v The AG of T&T, PC Appeal No. 13 of 2004. It was held that a monetary award for Constitutional violations was not confined to an award of compensatory damages in the traditional sense Per Lord Nicholls at Paragraphs 18 & 19:“When exercising this Constitutional jurisdiction the Court is concerned to uphold, or vindicate, the Constitutional right which has been contravened. A declaration by the Court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the Court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 iswas detained for a total of approximately seven days, comprising an initial thirty-six-hour detention and a subsequent four-day Court-sanctioned remand without any charge being preferred against him at any point. Second, his house keys were confiscated throughout the period of detention, rendering his wife and minor children unable to access their home. Third, the investigation ultimately yielded no forensic report, no charge and no witnesses' statements, suggesting that the entire episode lacked sufficient evidentiary foundation from the outset. Fourth, the Petitioner was a person of standing in his community and the circumstances of his arrest and detention, including the nighttime visit to his residence visited indignity upon him and his household beyond the mere physical fact of detention. 134.The Constitution in Article 23(e) ordains Courts to make an order for monetary compensation for fundamental rights violations. This is foundational in public law that compensation is viable and a distinct remedy for constitutional torts. Therefore, the State once found guilty of infringement or violations of the fundamental rights and freedoms cannot escape liability by claiming sovereign immunity in cases in which the citizens rights are being subjected to infringement by the organs of the State. This kind of compensation is distinct from private tort law under the various limbs of negligence or defamation for that matter. The rationale for damages to be awarded against the State is to vindicate the sacrosanct nature of fundamental rights and to deter further constitutional harm by the State through its State Officers or organs or agents or as the case may be. In the famous phrase of Kant’s in a much-quoted sentence of his 1958 commentary and I quote:Human dignity is violated when the individual human being [der konkrete mensch] is reduced to a mere means, to a replaceable magnitude [ver-tretbare Grόβe]. Humanity itself is a dignity; for a man cannot be used merely as a means by any man (either by others or even by himself) but must always be used at the same time as an end. It is just in this that his dignity (personhood [Persόnlich-keit) consists, by which he raises himself above all other beings in the world that are not men and yet can be used, and so over all things (Ak 6:462). (See Dignity It’s History and meaning by Michael Rosen at page 80). 135.The Kenya National Police Service derives its mandate from Art. 244 of the Constitution of Kenya 2010, which in express terms obligates the Service to strive for the highest standards of professionalism and discipline among its members, to foster and promote relationships with the broader society, to prevent corruption and to ensure that its members respect human rights and fundamental freedoms of every person. These are not hollow aspirations inscribed in statute for ornamental purposes. They are binding Constitutional and legal obligations that every police Officer carries into every decision they make, every arrest they effect and every person whose liberty they touch. 136.A Police Officer is not a passive instrument to be pointed in the direction of a citizen and activated by whoever makes the loudest complaint or possesses the greatest influence. A Police Officer is a Constitutional actor, independently vested by the law with powers that are, by their very nature, among the most intrusive that the state can exercise against a free person. The power to arrest, to reach into a person's life, to remove them from their home and family, to place them in a cell, is a power of huge consequence. It must be exercised with corresponding care, sobriety and professional judgment. 137.When a complaint is received, a Police Officer's first duty is not to act, it is to interrogate the complaint. To assess it independently and objectively. To ask whether it discloses a cognizable offence. To ask whether the person named in the complaint is the person who committed it. To ask whether an arrest is warranted at all, or whether investigation should first precede it. These are not bureaucratic steps designed to slow down law enforcement but rather the Constitutional safeguards that stand between a citizen's liberty and the arbitrary exercise of state power. They are what separates policing from persecution. 138.The critical point this Court wishes to drive home to every police Officer is this. The responsibility for a lawful arrest rests entirely and solely on the arresting Officer. It does not rest on the complainant. It does not rest on whoever made the telephone call to the station. It does not rest on whoever transmitted the screenshots or the information. When an Officer places a person under arrest, that Officer assumes full personal and institutional responsibility for that act. If the arrest turns out to be unlawful, if it is not anchored on sufficient evidence, if the statutory conditions for a warrantless arrest are not met, if the person arrested turns out not to be connected to the alleged offence, it is the Officer who must answer for it. 139.I have no hesitation in taking the view that where the State affirmatively sanctions any such Police Officer incursion into privacy it will run counter to the guarantee of Article 31 of the Constitution. There is an English common law maxim that every man’s house is his castle and fortress and therefore it should not be interfered with without justifiable and reasonable cause. Are the phrases personal liberty and right to privacy in our Constitution to be construed as excluding or limiting their invasion on the part of the Police? Prima facie I don’t think so. However, the spirit of the Constitution demonstrates that the sanctity of a man’s home and intrusion to his personal security and liberty for that matter and his rights to happiness so that he enjoys his comfort at the mansion or palace he has put up before himself and if gifted with family and in one accord each holds both physical and sentimental value to those possessions, then there must be a dire necessity for any intrusion of those rights and which must be screened within the frame and lens of the constitution. The preamble of our Constitution is designed in such a way that it assures the Kenyan people the dignity of the individual and therefore of those cherished human values as the means of ensuring full transformation of our principles of governance and national values in Article 10 of the Constitution. The security of one’s privacy against arbitrary intrusion by the Police without complying with Article 24 of the Constitution is basic to a free society. I have no hesitation in holding the view and saying that were the State machinery to sanction and authorize any such Police incursion into the right to liberty and privacy it would run counter to the guarantees of Articles 25, 26, 27, 28, 29 and 31 of the Constitution. If indeed there is fear and apprehension on restraint of one’s physical liberty and freedom of movement, I consider it even more traumatic for one’s encroachment on his private life for that is what a man’s physical happiness and health revolve around the basic structure of humanity. To my mind applying the facts under the law to the scheme of this petition the State being represented by the 2nd, 3rd 4th and 5th Respondents and further 1st and 2nd Interested Parties had a duty to satisfy the Court that the fundamental rights alluded to by the Petitioner were not infringed by showing that there is a law and that their actions and conduct vicariously did not amount to unreasonable restriction within Article 24 of the Constitution. 140.There is no doubt personal liberty and right to privacy of the Petitioner was curtailed and the test laid down in Articles 29 and 31 of the Constitution which have many attributes were also infringed by the State machinery without any possible justification. 141.This is what the Court had in mind in Wolf v Colorado 338 US 25 (1949) in which it was observed inter alia:“In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilization advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man's mind are in a real sense physical restraints, for they engender physical fear channelling one's actions through anticipated and expected grooves. So also the creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty. The pregnant words of that famous Judge, Frankfurter J., in Wolf v. Colorado [[1949] 238 US 25] pointing out the importance of the security of one's privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Article 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Article 21 of the Constitution”. 143.The Petitioner’s petition when tested through the provisions of Sections 107(1), 108, 109 and 112 of the Evidence Act he has discharged the standard and burden of proof surrounding his arrest on 27th June 2023 and subsequent indictment for the offences under the Cyber Crime Act which never saw the light of the day was in violation of his rights under Article 27, 28, 29, 31 and 49 of the Constitution. There is nothing in a suspect for an offence being taken in by the Police but the aftermath conduct is under surveillance by the constitutional imperatives within the provisions which touch on the Bill of Rights. That is the very reason in my view the petition meets the test of a constitutional tort in which the Petitioner has competently demonstrated the necessity for an award of damages for the violation of his fundamental rights. (See the principles in William Musembi & 13 Others v Moi Educational Centre Co. Ltd SC Petition No. 2 of 2018, Hon. Gitobu Imanyara & 2 Others v the Attorney General SC Petition No. 15 of 2017, Charles Muturi Macharia (Suing as next of friend and on behalf of Wangari & 6 Others vs The Standard Group & 4 Others Petition No. E015 of 2022. 144.As alluded to by one writer Vincent in his article The Concept of Constitutional Tort “Man is to error in the course of operations the government and all its representatives may harm or inflict injuries to the people by publishing incorrect statements, physical injuries or even malicious prosecution.” In the traditional adversarial system such grievances or claims best recourse has been to file a suit in civil Courts. fortunately, the advent of the new Constitution brought in what is now commonly referred to the doctrine of constitutional tort in which a petitioner, litigant, applicant, plaintiff or claimant may now sue for damages on constitutional violations. This branch of law provides a framework in which a private citizen may file a suit or a petition against a government to redress a constitutional violation against the government servant, institution as a corporate body primarily vested with constitutional or statutory powers for the governance and sustenance of the rule of law. 145.This was the position taken by Mativo J as he then was in the case of John Atelu Omilia & Another v Attorney General & 4 Others [2017] eKLR where it was held:“A "constitutional tort" refers to a private civil suit brought to redress a constitutional violation. Constitutional torts are violations of one’s constitutional rights by a government servant. "Constitutional tort" actions are an avenue through which individuals can directly appeal to the Constitution as a source of right to remedy government-inflicted injury. This sort of access is a recent phenomenon. Before the twentieth century, the Constitution primarily served a structural function, with litigation focused on the limits of government power. Suits seeking to hold the government liable for individual injuries were brought in state courts pursuant to the common law. It was not until the U.S. Supreme Court decisions in Monroe vs. Pape and Bivens vs. Six Unknown Named Agents of Federal Bureau of Narcotics that individuals began arguing that the Constitution entitled them to damages for wrongful injury” 146.The violation of human rights which are protected and guaranteed in the Constitution 2010 is therefore redressable under the rubric of constitutional tort. The comparative law from the Constitutional Court of South Africa in the case of Ntanda Zeli Fose vs The Minister Safety and Security (CCT14/96) [1997] ZACC6; 1997 (7) BCLR 851; 1997 (3) SA 786 (5 June 1997) in which it was observed:“………. our object in remedying these kinds of harms should, at least, be to vindicate the constitution, and to deter its further infringement. Defense speaks for itself as an object, but vindication needs elaboration. Its meaning, strictly defined, is to “defend against encroachment or interference.” It suggests that certain harms, if not addressed, diminish our faith in the constitution. It recognizes that a constitution has as little or as much weight as the prevailing political culture affords it. The defense of the constitution—its vindication is a burden imposed not exclusively, but primarily on the judiciary. In exercise of our discretion to choose between appropriate forms of relief, we must carefully analyses the nature of a constitutional infringement and strike effectively at its source….”“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced. If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all-important rights.” 147.The assessment of damages under the dimension of constitutional tort as a remedy for constitutional violations is manifested to achieve a number of objectives and goals.First, they provide compensation to the victims and ensure that there is effective redress for the wrong that has been suffered.Second, damages achieve a notable deterrent effect. The award of damages for a past infringement of the Charter presumably deters future prospective infringers and encourages proactive compliance. This idea lies at the root of remedies law itself, which seeks to put aggrieved parties in the position they would have occupied but for the breach.Third, damages for constitutional violations can be viewed as a means through which infringers can be punished in the case of egregious violations.Fourth, the availability of damages promotes access to justice; any economic analysis of litigation dictates that the absence of personal benefit will deter the commencement of constitutional claims.Fifth, ineligibility for damages would seem to contradict accepted principles of standing, according to which the Plaintiff gains party status because he or she is "directly affected" by a monetary interest, and conversely a public interest litigant only gains standing where there is no effective means for the dispute to come before the courts. For all of these reasons, damages as a remedy for constitutional violations serve the public interest by encouraging the continued respect for, and compliance with, Charter values. (See National Journal of Constitutional Law https://www.weirfoulds.com 148.One can argue that in cases of this nature and truly so that all government officials whether National or in the devolved units, they ought to claim some sort of immunity against an award of damages for any constitutional violations alleged by the Petitioners or Claimants. To some extent I agree that the sometimes the immunity is absolute for the State Officers of various organizations on decisions made in the course of performance of their duties outlined in the Statute or any other policy document of governance. In my view the context of this of qualified immunity of any State Officer or in our case the Police Officers must show good faith and probable cause for their actions which led to the infringement of the right to privacy in Article 31, limitation of the right to freedom and security of the Petitioner given the provisions of Article 49 of the Constitution on the rights of arrested persons. My response to this condition on immunity of State Officers is for constitutional courts to undertake an inquiry and to focus instead on the objective reasonableness of the Respondent’s conduct when it comes to allegations of constitutional violations mainly targeting the Bill of Rights. 149.What do I see as importance of compensation when it comes to claims of violations of the Constitution as against the government institutions or their respective employees and servants? I take the view that damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees of our transformative Constitution 2010 which was born as a result of many decades of sacrifices and negotiations and since then it is a new dawn for every citizen that their rights shall not be limited unless within the context and text of Article 24 of the same Constitution. This is true that if good faith defence is allowed to prevail without empirical evidence of justification and limitation many citizens injured by the employees or agents or servants of both the National and devolved units will be left remediless. That can never be the letter, the spirit and ghost of the Constitution. 150.In matters of the Constitution though I have made reference to the doctrine of constitutional tort, the application of vicarious liability differs distinctly from standard tort of negligence. While employers are strictly liable for employee negligence in tort, constitutional tort focus on personal liability for rights violation. Therefore, a line must be drawn between personal breaches and State liability. At common law, tort of negligence focuses on a breach of a duty of care where an employer can be vicarious liable if the wrongful act occurred within the scope of employment. Conversely constitutional torts for example police brutality, unlawful detention, malicious prosecution involve the violation of fundamental rights and freedoms under our Constitution. It is for this reason that because constitutional rights are generally framed against the State courts are often reluctant to impose vicarious liability for intentional constitutional violations by State Officers unless it is specifically authorized by Statute or by dint of constitutional interpretation. In my considered view, on matters of this nature as canvassed by the Petitioner the State is vicariously liable for the unconstitutional actions of the National Police Service employees or servants whom the Constitution binds under Article 10 on National Values and Principles of Governance. There is no escape route save for the 1st Respondent and the alleged Personal Assistant whose obligation was to make a report to a Police Station as to whether the aforesaid publication or print media qualified to be an offence under Kenyan law. For a broad understanding of this petition, it is crystal clear from the evidence of the Respondent’s star witness as at the time of arresting, detaining and preferring charges against the Petitioner no formal statement of complaint had been written, taken in to form part of the case docket under investigation by the National Police Service. The National Police Service imported the doctrine of vicarious liability by placing reliance on the alleged report shared by the Personal Assistant to the 1st Respondent. The implication of it in law is that there was no relationship or any close connection test for the Personal Assistant to the 1st Respondent to fit into the shoes with regard to the issue of publication under review by the National Police Service so that an appropriate legal action could be taken as against the Petitioner. There was insufficient connection between the Personal Assistant and the alleged wrongful conduct of the Petitioner. It cannot be denied that any Kenyan who becomes a victim of lawlessness or unlawful act or omissions as prescribed by Parliament in the various penal provisions of our statutory scheme of legislations is at liberty to approach the National Police Service to take action as appropriate within the Constitution, The National Police Service Act and The National Police Service Standing Orders. 151.Generally, there will be less or nothing an individual who has reported an occurrence of a crime to a Police Station for any aftermath conduct carried out by the Officers during the commencement and conclusion reached by the Investigating Officer appointed by the In-charge of such Police Stations or in the alternate Divisional or District or County Criminal Investigation Officer. There is therefore in my view no direct or indirect liability on the part of the 1st Respondent as alleged by the Petitioner in his quest to seek justice before this Court. Here, the constitutional and statutory duty is imposed on both the National Police Service and correspondingly at an opportune time of making a decision to charge a suspect under Article 157(6) (7) of the Constitution by the Director of Public Prosecution. 152.A Complainant in the criminal justice system in this Constitutional Democratic Republic governed by a transformative Constitution 2010 is not liable in damages following an acquittal of an accused person because civil courts require proof that the complainant was malicious and lack reasonable and probable cause. An acquittal under our civil law on its own is never a sufficient legal basis to automatically award damages to the offender or the accused person for that matter. The law protects complainants to ensure that citizens can report suspected crimes without the constant fear of retaliatory lawsuits. (See the principles in Nzoia Sugar Company Ltd v Fungututi [1998] KLR 399. In this same subject matter the Court in the case of Gitau v Attorney General [1990] KLR 13 the Court affirmed the principles as follows; that if a complainant genuinely believed the facts and genuinely laid them before the Police, the Office of the Director of Public Prosecution or a Judicial Officer for investigation, they are protected from liability, even if the Police charge the wrong person file a defective charge or information or the right suspects but the trial Court eventually exercising its judicial power and jurisdiction under Article 50 (1) of the Constitution and eventually acquits the offender or the alleged suspect there can be no liability unless the threshold of reasonable cause is delved into more deeply and reveals that any action taken the Complainant acted in bad faith, was malicious and remain to be at the centre of oiling the wheels of justice. The Constitution is very clear in Article 157(10) & (11) which expressly provides as follows:(10) The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority. (11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. 153.This constitutional imperative demonstrates that the Director of Public Prosecution and Public Prosecutors must or are deemed to operate independently of the maker of the complaint, the Police and the Executive or even Parliament who conferred the statutory powers being exercised by that noble office on administration of criminal justice on behalf of the State. In fact, it is a constitutional imperative under Article 157 that the Prosecutors across the country are expected to independently review evidence to decide whether to proceed with a trial, withdraw a case or drop charges rather than acting as a mouthpiece of the State or the victim of the offence. In the same Constitution under Article 50 fair trial rights import the aspect of the investigation and prosecution being handled by independent directorates, as it is in our Constitution the drafters put in place Article 157, 244 and 245 with regard to the Office of the Director of Public Prosecution and the National Police Service. 154.The Constitution on matters of State Officers intentionally or negligently breaches their official duties and in the course of it infringes or violates that very same text of the Constitution must read in conjunction with the basic law governing the functions and duties of those Officers which then if there is injury to a third party it renders the State liable where the breach has taken place in the exercise of a public office of the State Officer or public servant. As a result State liability maybe described as resting on two pillars; private and public law which are interrelated and influence each other. These provisions render the State employer indirectly liable for the tortuous acts of its officials or institutions. 155.The enunciation of the rights either expressly or by implication discussed in this judgment does not follow a uniform pattern but one thread runs through them. They seek to protect the rights of the Kenyan people as individuals or as groups or as units against violations or infringement within the texture of the specific limits provided in Article 24 of the same Constitution. The doctrinal validation of the basic premise of the petition by the Petitioner is better infused and fashioned by the following poem reflecting on inherent human dignity and the fundamental right to liberty:In the quiet dawn of every soul,A sacred spark, a vital whole.No chains can bind, no force can break,The sovereign rights we wake to take.Born to choose, and born to be,Entitled to our liberty.A vessel formed of flesh and mind,With equal worth to all mankind.Written deep in nature’s script,And from our freedoms never stripped,The state exists to shield and hold,This human dignity, pure and bold.For every mind, a voice to speak,To lift the fallen and the weak.Where laws are just, and justice thrives,It guards the breath in all our lives. 156.For those reasons, there is merit in the petition by the Petitioner and the following declarations shall abide:a.That a declaration be and is hereby made that the 3rd, 4th and 5th Respondents in the course of executing their official duties jointly and severally failed to acknowledge the supremacy of the Constitution and to recognize the aspirations of all Kenyans that the government in which they serve is based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law.b.That a declaration be and is hereby made that the 3rd, 4th and 5th Respondents failed to acknowledge that the Constitution 2010 is the supreme law of the Republic and binds all persons and all State organs of both levels of government and as State Officers employed in the service of the National Police Service, any decision made as against the Petitioner ought to have been in conformity with Article 10 of the Constitution on national values and principles of governance.c.That a declaration be and is hereby made that the 3rd, 4th and 5th Respondents in their execution of the statutory duties spelt out under the National Police Service Act and the National Police Service Standing Orders acted in excess of jurisdiction and as a result of which infringed the provisions of Article 24, 25(a), 27(1) (4), 28, 29, 31, 47, 49 and 50 of the Constitution with regard to limiting or absolutely denying the Petitioner enjoyment of those rights during the short term period he was arrested, detained and a recommendation made for his prosecution which eventually became a legal stillbirth.d.That a declaration be and is hereby made that the 1st Respondent who was aggrieved with a publication nuanced with elements of defamation and intentional disrepute walked out of the judicial process naked as he came without his concerns accorded the necessary protection, for in the petition is not clear on why the criminal process was started and within a short period estopped.e.That a declaration be and is hereby made that where the Criminal Procedure Code or any other law prescribes a search to obtain evidence or other documentary for the investigation into the offence Article 24 on limitation of rights and freedoms, Article 50 on self-incrimination and illegally obtained evidence, the right to liberty which includes psychological trauma in Article 29 and right to privacy in Article 31 should not be infringed or violated by the State machinery or the National Police Service.f.That a declaration be and is hereby made that a right of one person’s liberty, life, privacy, conscience, religion, dignity, security prima facie and constitutionally are rights of complete immunity unless limited within the exceptional clauses in Article 24 for every individual has a right to be alone without interference from others or the State.g.That a declaration be and is hereby made that criminal actions initiated by the victims of crime in which prosecution is flourished by the State in their respective Courts unless otherwise stated in the exceptions of the law must never be a ground for one to be held liable in damages for the acts of omission, or breach of duty of care or non-compliance with the Constitution by the Organs of State being the National Police Service and the Office of the Director of Public Prosecution.h.That a declaration be and is hereby made that the doctrine of vicarious liability for the State omission on investigations and prosecution of suspects of crime cannot be vested by the mere complaint made by the victim of the offence.i.That a declaration be and is hereby made that the 2nd, 3rd, 4th 5th Respondents together with the 1st and the 2nd Interested Respondent are jointly and severally liable for purposes of not oversighting the protection of human rights and fundamental freedoms accorded to the Petitioner by the Constitution to preserve his dignity, liberty, privacy unless the nature and extent of the limitation was excusable and justified as laid down in Article 24 of the Constitution.j.That a declaration be and is hereby made that the 1st Respondent cannot be held vicariously liable under the Constitution for the torts committed by the 3rd, 4th and 5th Respondents in executing the constitutional and statutory mandate as per law established within the prism of those instruments and other guidelines issued by the National Police Service.k.That a declaration be and is hereby made with regard to the Petitioner as against the 2nd, 3rd 4th, 5th Respondents and 1st and 2nd Interested Parties jointly and severally for they had a constitutional duty to ensure that their employees, servants or State Officers executed their respective roles under Article 47 of the Constitution in consonant with the doctrine of legitimate expectation.l.That a declaration be and is hereby made that at the time the Petitioner was arraigned in Court and subsequent withdrawal of the charges prima facie there was no trial bundle under Article 157(6) (7) as read with Article 50 (2) (b) & (j) of the Constitution as no such evidence was ever shared with the constitutional court during the pendency of the petition.m.That a declaration be and is here made that once an accused person has been subjected to investigation and a plea taken under Article 157(6) & (7) of the Constitution as read with the applicable Criminal Procedure Code provisions and in consonant with Article 49(1) (h) as construed with Article 123 and 123(a) it would be a violation of the Constitution for an interlocutory application for further detention conditioned on incomplete investigations without concrete evidence within the scope of doctrine of necessity and justification and new compelling evidence for the Court to limit such rights at the pretrial stage.n.That a further declaration be and is hereby made that besides the 1st Respondent being mentioned in the impugned print media no liability should accrue even if it was to be established that indeed he lodged a complaint or grievances with statements or words which became the cause of the arrest, detention and prosecution of the Petitioner.o.That a declaration be and is hereby made that the 2nd 3rd, 4th 5th Respondents together with the 1st and 2nd Interested Parties be jointly and severally be held liable for the infringement and violation of the Constitution committed by the 3rd 4th and 5th Respondents in execution of their duties and in the course of it breaches of the aforementioned constitutional provisions were violated. As a consequence of the constitutional torts I assess general damages payable at Kshs 4,000,000/= within one hundred and twenty (120 days) from the delivery of this judgment.p.That costs of the petition shall be borne by the Respondents. 157.I want to take this opportunity to place on record my profound appreciation to my Learned Colleagues representing each party to this petition for their remarkable patience and resilience in this matter given the overreach on time in the delivery of the decision. I deeply regret any inconvenience or prejudice it may have caused to your respective clients. I thank them for their grace. 158.Orders accordingly. DATED AND DELIVERED AT ELDORET VIA CTS AND EMAIL THIS 12TH DAY OF JUNE 2026…………………………………….R. NYAKUNDIJUDGE