[2023] KEHC 27311 (KLR)

Siddique w/o Arshad Sharif & 2 others v Attorney General of Kenya & 4 others (Constitutional Petition E009 of 2023) [2023] KEHC 27311 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27311 (KLR)

Republic of Kenya

In the High Court at Kajiado

Constitutional Petition E009 of 2023

SN Mutuku, J

December 1, 2023

Between

Javeria Siddique w/o Arshad Sharif

1st Petitioner

Kenya Union of Journalists

2nd Petitioner

Kenya Correspondents Association

3rd Petitioner

and

Attorney General of Kenya

1st Respondent

Director of Public Prosecutions

2nd Respondent

Inspector General, National Police Service

3rd Respondent

Independent Policing Oversight Authority

4th Respondent

National Police Service Commission

5th Respondent

Ruling

1. The Petitioners filed, contemporaneously with the Petition dated 19th October 2023, the Notice of Motion bearing the same date to which this ruling relates. They are claiming violations of the constitution relating to the fatal shooting of Arshad Sharif on the night of 23rd October 2022 in Kajiado County.

2. The Notice of Motion seeks the following prayers:a.Spentb.Pending hearing of the Application a conservatory order does issue directing the Respondents to preserve all evidence and reports collected in relation to the unlawful killing of Arshad Sharif by the Kenyan police under the command of the 1st Respondent.c.Pending hearing of the Petition a conservatory order does issue directing the Respondents to preserve all evidence and reports collected in relation to the unlawful killing of Arshad Sharif by the Kenyan police under the command of the 1st Respondent.

3. The grounds in support of the Application, found on the face of it and in the Supporting Affidavit sworn by the 1st Petitioner, can be summarized as follows that Arshad Sharif (deceased), a Pakistani National, was fatally shot by Kenyan Police on 23rd October 2022 in Kajiado County; that at the time of the shooting, the police claimed to have been pursuing and trailing a Mercedes Benz Sprinter Van registration number KDJ 700F allegedly stollen in Pangani area and that the deceased was, at the time of the shooting, a passenger in Toyota Landcruiser V8 registration number KDG 200M.

4. It is further stated that the Inspector General National Police Service, the 3rd Respondent, admitted the said shooting and termed it “a case of mistaken identity”, and promised that the matter would be investigated by competent authorities and that the 4th Respondent equally promised to speedily investigate the matter. However, since that time, the police have not investigated the matter at all, or if they have carried out any investigations, those investigations have not been prompt, independent, impartial, effective, accountable, or led to the prosecution of the perpetrators and that the 3rd and 4th Respondents have failed to respond to requests by the 1st Petitioner for the status of the investigations.

5. The Petitioners fear that the failure by the Respondents to investigate, arrest or prosecute the police officers who unlawfully shot and killed Arshad Sharif amounts to cover-up, thereby threatening further violations of the constitution.

Responses 6. The 1st and 3rd Respondents did not file Replying Affidavit to the Notice of Motion. They made oral submissions. I will revert to their submissions below.

7. The 2nd Respondent filed Grounds of Opposition dated 16th November 2023. In brief the 2nd Respondent has stated that his mandate is spelt out under Article 157(6) of the Constitution to direct the 3rd Respondent to carry out investigations in respect to any information or allegations of criminal conduct and basing on the outcome of those investigations, carry out the functions of prosecution. He has stated that the Petitioners have not demonstrated with particularity the prejudice or harm they will suffer if the conservatory orders are not granted; that they have not demonstrated a prima facie case with a likelihood of success and that the Petitioners will not suffer any prejudice as the substratum of the Petition will not be rendered nugatory if the application is not granted.

8. The 4th Respondent filed submissions which I will revert to in this ruling.

9. The 5th Respondent filed Grounds of Opposition in which it has stated that it is an independent Constitutional Commission with its mandate spelt out under Article 246(3) of the Constitution; that while it exercises disciplinary control over members of the National Police Service, the police remain under the independent command and discipline of the Service under the Office of the 3rd Respondent; that the 5th Respondent is barred under section 10 (g)(i) of the National Police Service Commission Act from conducting investigations; that the Petitioners have not demonstrated any acts or omissions by the 5th Respondent to exercise disciplinary control considering there is no report or any request addressed to it with particulars to summon or investigate any police officers for disciplinary infractions in the course of their employ in relation to this Petition.

Submissions 10. Parties were directed by this court to file submissions. The Petitioners files submissions dated 16th November 2023. They have submitted that at this stage, all they need to demonstrate is that the petition is arguable and not frivolous; that unless conservatory order sought is granted, the petition were it to succeed would be rendered nugatory and that it is in the public interest that the orders sought be granted as pronounced by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR).

11. They have submitted that they have established an arguable or a prima facie case; that they are questioning the unlawful killing of the deceased by Kenyan Police and the Respondent’s failure to investigate the issue and that in that regard, the petition is arguable; that the issues they are raising are weighty and by no means frivolous and raises serious questions that merit reasonable and fair chance to be heard (see Muslims for Human Rights v Attorney General [2011] eKLR). They submitted that an arguable petition is one eliciting controversy that purely bear constitutional dimensions and effect (see George Mike Wanjohi v Steven Kariuki & 2 others [2014] eKLR).

12. They have submitted that the absence of conservatory order will render the petition nugatory if the documents, files, reports, letters and emails are not preserved; that the Respondents will suffer no loss by preserving all the documents, files, reports, letters and emails relating to the shooting of the deceased.

13. They have submitted that the public interest in this matter favours the granting of the conservatory orders; that Articles 3 and 21 of the Constitution require the Respondents to protect the Constitution and that the High Court, as the custodian of the Bill of Rights, can intervene where facts disclose a need to prevent a violation of the rights and fundamental freedoms in the Constitution (see Bill Kipsang Rotich v Inspector Generaql of National Police Service [2013] eKLR).

14. 1st and 3rd Respondents did not file written submissions. Instead, they made oral submissions through their legal representative that they oppose the Application. Mr. Sekwe, appearing for both 1st and 3rd Respondents, told the court that they had filed grounds of opposition dated 20th November 2023 but I did not find the grounds of opposition referred to in the court file.

15. Counsel submitted that the 1st Respondent does not exercise command over the National Police Service Officers; that the constitutional mandate of the 1st Respondent is provided under Article 156(4) of the Constitution and section 5 of the Office of the Attorney General Act which mandate does not include control or command over the officers of the National Police Service; that section 8 of the National Police Service Act gives the 3rd Respondent the overall command over police officers and not the 1st Respondent; that the 4th Respondent has clearly confirmed conducting comprehensive investigations and made recommendations to the 2nd Respondent and that this having been confirmed, the 1st Respondent has not business in the matter.

16. It is further submitted that the Petitioners have not demonstrated how the 1st Respondent is involved in investigations.

17. In his submissions, the 2nd Respondent stated that the Petitioners have failed to meet the test for the grant of conservatory orders as set out in Gatirau Peter Munya case (supra) and that the Petitioners will not suffer prejudice or harm if this court declines to grant the conservatory orders; that the petitioners have not particularized the evidence or reports they seek to be preserved and that the 2nd Respondent does not conduct investigations and therefore is not a custodian of any evidence gathered or report made by investigative agencies.

18. It is submitted that the Petitioners have not established a prima facie case with a likelihood of success and that it is frivolous because the 2nd Respondent has no investigative powers and only acts upon completion of investigations by the 3rd Respondent; that a court ought not to delve into detailed analysis of the facts and law but should focus on determining whether the Petitioners have put forward a case that is arguable and not frivolous (see Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR and Trust Bank Limited v Amin Company Ltd & another [2000] KLR as cited in Mary Wangari Mwangi v Peter Ngugi Mwangi T/A Mangu Builders Ltd & 3 others [2013] eKLR).

19. The 2nd Respondent submitted that the Petition will not be rendered nugatory; that it is not satisfactory to argue that if the conservatory order is not granted it could lead to loss of evidence thus rendering the petition nugatory and that the Petitioners have not demonstrated that this Petition is a public interest one.

20. The 2nd Respondent cited Black’s Law Dictionary on the definition of “public interest” as “The general welfare of the public that warrants recognition and protection; or something in which the public as a whole has a stake especially an interest that justifies governmental regulation.” The 2nd Petitioner has asked the court to dismiss the Application herein.

21. The 4th Respondent has submitted that if the orders sought are granted, the 4th Respondent will not be able to collect or fill in the gaps which might be identified by the 2nd Respondent thereby affecting the investigations and the subsequent prosecution of the perpetrators; that the investigation and preservation of evidence and exhibits is solely within the exclusive mandate of the 4th Respondent and therefore the application is misconceived and without basis in law as the orders sought violate the statutory mandate of the 4th Respondent.

22. It is submitted that the Petitioners are attempting to urge the court to suspend the statutory mandate of the 4th Respondent to independently perform its duties. The 4th Respondent cited Katiba Institute v Judicial Service Commissioner & 2 others; Kenya Magistrates and Judges Association & 2 others (Interested Parties) [2022] KEHC 438 (KLR) where the court stated that:“….the court remains alive to the position that entitles created under the constitution and the law ought to be accorded the latitude to discharge their functions and that any judicial intervention must be in the clearest cases…”

23. The 4th Respondent submitted, further, that the Petitioners have not established a prima facie case on unconstitutional or statutory conduct of the Respondent and the application should be dismissed because the 4th Respondent has conducted thorough investigations in accordance with the law; that the Petitioners have not demonstrated in any way hoe the evidence and documents in possession of the 4th Respondent are in any danger of being lost or otherwise and that the Petitioners have not demonstrated that the Respondents have failed to investigate the matter therefore violating the right to life under Article 26 of the Constitution.

24. The 4th Respondent cited Invesco Assurance Co. v. MW (Minor suing through next friend and mother (HW) [2016] eKLR where the court stated that:“a conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”

25. It was submitted that based on the above case, the purport of conservatory orders in the instant case is that the 4th Respondent will be prevented from doing anything with the evidence which might need some further analysis depending on the directions and advice of the 2nd Respondent. It was submitted that the Petitioners will not suffer irreparable harm because the evidence in the possession of the 4th Respondent will be available for the purposes of prosecution of this matter or any other court process after the 2nd Respondent’s guidance and that failure to grant the orders sought at this stage will not render the substratum of the main petition nugatory.

26. It was submitted that the Petitioners have not demonstrated that this is a public interest matter. The 4th Respondent urged that this application be dismissed with costs.

27. The 5th Respondent has argued in its written submissions dated 20th November 2023 that the Petitioners have not demonstrated a prima facie as defined in Mrao v First American Bank of Kenya Limited & 2 others (2003) KLR 125 for the reasons that no facts that attribute the actions imputing the 5th Respondent as infringing on any of the rights against the Petitioners; that the 5th Respondent’s mandate relates to human capital management of the members of the National Police Servicey, a constitutional entity under the independent command of the 3rd Respondent and that the 5th Respondent is barred by section 10 (g) (i) of the National Police Service Commission Act from conducting investigations of a criminal nature.

28. It is demonstrated that the Petitioners have not demonstrated as to how the 5th Respondent threatens real danger to the rights of the Petitioners considering the context of its mandate. The 5th Respondent asked the court to dismiss the application with costs.

29. Parties that filed written submissions highlighted them in court through virtual proceedings on 21st November 2023.

Analysis and Determination 30. I have considered this Notice of Motion and the supporting grounds adduced by the Petitioners. I have considered the responses including grounds of opposition and written submissions highlighted by the parties to this Petition. From the outset I wish to clarify that the Petitioners, in the Notice of Motion under consideration, are not, to my understanding, asking to be supplied with the evidence from the investigations carried out by the Respondents or those among the Respondents that are mandated to investigate. Counsel representing the Petitioners seems to hold the view that the Petitioners are seeking disclosure. He is captured in his highlight of the submissions in reply to have stated that “the Respondents are confusing this application with the main petition. We are just asking for disclosure”.

31. That is not what the Notice of Motion is seeking. I understand that application to be seeking, through the conservatory orders, the preservation of all evidence and reports collected in relation to the killing of the deceased. This is clear from prayer (b) and (c) of the Notice of Motion. It is the main Petition under prayer (f) that seeks an order compelling the Respondents to supply to the Petitioners copies of all evidence gathered in respect of this matter.

32. I am aware that all the Respondents, save the 4th Respondent, have put forward a case that they are not involved in the investigations in this matter or put differently, their constitutional mandates do not include investigations. To my mind, to pronounce myself on that issue at this stage of these proceedings, while the substantive Petition is pending, will be prejudicial to the Petitioners. The determination of that issue will have to wait until the time of canvassing the Petition.

33. The deceased was killed on 23rd October 2022. One year has lapsed since that incident that gripped the attention of the public. As far as this court can tell, and as pleaded in this Petition and the Notice of Motion, no prosecution has taken place. According to the 4th Respondent, investigations are complete, and all the investigation materials handed over to the 2nd Respondent whose mandate it is to prosecute. The 4th Respondent expresses apprehension that if conservatory order is granted, this will hamper them from proceeding further with investigations should the 2nd Respondent require further investigations be done or clarifications be made in the investigations.

34. This court can understand the anxiety and apprehension of the Petitioners, specifically the 1st Petitioner. A year is a long period of time without feedback on what is going on in the investigations of this matter. I have seen the attached letters to the Petition, especially the letters dated 20th May 2023, addressed to the 4th Respondent, the letter dated 30the June 2023, addressed to the Secretary, Commission on Administrative Justice (not a party to this Petition) and a letter dated 31st July 2013 addressed to the 2nd Respondent. These are complaint letters requesting updates on the progress of the investigations into this matter. There is no evidence that any feedback was given to the Petitioners, specifically the 1st Petitioner, by the concerned authorities.

35. I have cautioned myself of the balancing act I have to exercise in handling this matter. I have warned myself that at this stage of these proceedings, I must tread carefully lest I make pronouncements that may prejudice any party before the main Petition is heard. The need for caution in dealing with a matter like this one has been expressed in various authorities including Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General (2011) eKLR, Platinum Distillers Limited vs. Kenya Revenue Authority (2019) eKLR and Kenya Association of Manufacturers & 2 Others vs. Cabinet Secretary – Ministry of Environment and Natural Resources & 3 Others (2017) eKLR . These authorities vouch for the need for the court to be cautious in dealing with an application for conservatory orders and maintenance of the delicate balance of ensuring that the court does not delve into issues which are in the realm of the main petition.

36. In Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR, the court stated as follows: -“The court must be careful of it not to reach final conclusion and to make final findings. By the time the application is decided, all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either party. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.”

37. With the above caution in mind, it is imperative that I say as little as possible in regard to this matter lest I deal with the issues touching on the main Petition.

38. In seeking conservatory orders, an applicant must demonstrate three main principles for the court to consider. These are summarized as follows that:(a)An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.(b)Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and(c)The public interest must be considered before grant of a conservatory order.

39. Have the Petitioners in this instant matter fulfilled the above requirements? The Petitioners are not claiming that the Respondents have failed to take any action. Going by the letters I have referred to above in this Ruling, the main complaint seems to be failure to give feedback on the progress of the investigations and whether prosecution is contemplated.

40. The Petitioners are seeking preservation of all the evidence gathered during the investigations into this matter. That request is a general one without specifics as to what exactly this evidence contains. As argued by the 2nd Respondent, the Petitioners have not established that the 2nd Respondent has failed to exercise his constitutional mandate. To my mind, the only thing the 2nd Respondent may be accuse of may be taking long to prefer prosecution of those culpable.

41. The 4th Respondent has submitted that thorough investigations have been conducted and all evidence forwarded to the 2nd Respondent. It was also argued that this matter involves several government agencies as well as diplomatic missions and that criminal matters have no limitation period within which prosecution can be initiated.

42. I am aware that this is a delicate matter. It involves the loss of life of a human being. It cannot by any means be trivialized. It is my view that the issues being raised are not frivolous. The circumstances that led to the death of the deceased, to my mind, raise arguable issues. There are questions of culpability of police officers. It is a matter that needs to be subjected to due process of the law for justice to be seen to been done.

43. The National Values under Article 10 of the Constitution bind all State Organs, State Officers, Public officers, and all persons. Among these values are transparency and accountability. The Constitution commands us to act in a transparent and accountable manner in all that we do in serving humanity. It is for this reason, that those under a duty to act towards the finalization of this matter must do so expeditiously to avoid causing anxiety that may lead to unnecessary speculations.

44. Further it is admitted that investigations have been undertaken and the file forwarded to 2nd Respondent. Having considered this Notice of Motion and the rival arguments presented by the parties before the court, it is my finding that the issues being raised in this Notice of Motion are better addressed fully in the main Petition. In other words, this court would rather listen to all the parties in the main petition before substantive orders can be made.

45. Having given this matter consideration, it is my view that the Petitioners have not demonstrated that the documents, files, reports, letters and other correspondences relating to this matter and forming the investigative materials gathered by the investigators are not being preserved. I want to believe that even though the 4th Respondent claims to have handed over all the materials they gathered in their investigations to the 2nd Respondent, they must have retained their records. It is my belief, after careful consideration of this application, that the Petitioners will not be prejudiced, other than having to wait a bit longer for the issues they are raising to be addressed, if the orders they are seeking are not granted. I believe that the evidence gathered is in safe hands and will be kept safe as required under the law until this court is able to determine the Petition.

46. Consequently, I decline to allow this Notice of Motion. The Petitioners ought to pursue the main Petition to enable this court to decide on the same.

47. I direct that each party bears own costs in this Notice of Motion.

48. It is so ordered.

DATED, SIGNED AND DELIVERED THIS 1ST DAY OF DECEMBER 2023. S. N. MUTUKUJUDGE