https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1441

Ongoro v Director of Criminal Investigations & 4 others (Civil Appeal 92 of 2020) [2026] KECA 1441 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1441 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 92 of 2020 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Sylvanus Oiya Ongoro Appellant and Director of Criminal Investigations 1st Respondent Officer Commanding Police Station Bondo Police Station 2nd Respondent Director of Public Prosecutions 3rd Respondent Attorney General 4th Respondent Peter Owiti Okuna 5th Respondent (Being an appeal from the Judgment and Decree of the High Court of Kenya at Siaya (Aburili J.) dated 7th May 2020 in Constitutional Petition No. 57 of 2019 Constitutional Petition 57 of 2019 ) Judgment 1.This is an appeal from the judgment and decree of the High Court of Kenya at Siaya (Aburili, J.) (the High Court) dated and delivered on 7th May 2020 in Constitutional Petition No.57 of 2019. The appellant filed a constitutional petition before the High Court against the Respondents claiming that his constitutional rights had been violated and sought declarations to that effect and compensation. 2.The facts giving rise to the petition before the High Court as can be gleaned from the petition and supporting affidavits, were that on 7th October 2018, the appellant was arrested; detained at Bondo Police Station and was arraigned before the Chief Magistrate’s court at Bondo charged with arson and malicious damage to property together with six other accused persons in criminal Case No. 966 of 2018. The appellant claimed that during his arrest, police officers assaulted, harassed and abused him without informing him the reason for the arrest. 3.The appellant stated that although prosecution witnesses testified that he was not among persons at the scene of crime, the 3rd respondent declined to withdraw the charges against him and opposed his application for bail. 4.The appellant complained that he had to endure lengthy, burdensome and costly criminal trial which forced him to sell his property to raise money for bail and legal fees amounting to Kshs. 1,308,000, but was acquitted on 14th March 2019. The appellant asserted that court attendances interfered with his business and subjected him to psychological distress; that the physical abuse during his arrest and detention adversely affected his health and that his arrest, detention and prosecution were unlawful and amounted to a violation of his constitutional rights and fundamental freedoms. He sought declarations of violation of his constitutional rights, compensation and costs of the petition. 5.The 1st to 4th respondents (the respondents) filed a replying affidavit sworn by Josephine Wambua, (Ms. Wambua) on 4th February 2020 opposing the petition. Ms. Wambua deponed that on 6th October 2018, the 5th respondent reported at Bondo Police Station that his house had been set on fire by people he suspected wanted to kill him. Following investigations, the appellant and six other suspects were arrested and charged for the offences. 6.Ms. Wambua maintained that the appellant was informed the reasons for his arrest and was accorded an opportunity to prepare his defence; that he was represented by an advocate during the trial and he did not raise any complaint regarding violation of his rights. Ms. Wambua denied that the appellant’s constitutional rights were violated, maintaining that the appellant’s arrest and prosecution was lawful. The 5th respondent though duly served with the petition, did not file a response or take part in the proceedings before the High Court. 7.The petition before the High Court was disposed of through affidavits and written submissions which counsel highlighted. The High Court considered the petition and submissions and identified four issues for determination, namely; whether the appellant’s arrest and prosecution were unlawful, malicious, or in violation of his constitutional rights; whether the petition was legally competent; whether the appellant was entitled to general damages and the appropriate reliefs to grant. 8.In its judgment dated and delivered on 7th May 2020, the High Court dismissed the claim on violation of rights, holding there were reasonable grounds for arresting the appellant on suspicion that he had committed the offences following the 5th respondent’s report on the burning his house and after investigations, the appellant and his co accused were arrested and prosecuted. 9.With regard to the appellant’s acquittal, the High Court held that the acquittal was due to insufficient evidence and could not sustain a claim for malicious prosecution. The High Court concluded that the appellant did not prove that his constitutional rights had been violated and dismissed the petition. 10.The appellant was dissatisfied and filed this appeal through a memorandum of appeal dated 20th July 2020, raising several grounds of appeal that the High Court erred in: striking out the affidavits without hearing the petitioner; determining the petition in a biased and partial manner contrary to the principles of fair hearing; purporting to rely on documents already expunged from the record in making its determination; finding, without evidence, that the 5th respondent reported a complaint which was investigated and formed the basis of his prosecution; applying rules of pleadings in civil cases and purporting to sit on appeal in hearing the petition instead of invoking the jurisdiction of the High Court for enforcing fundamental rights and freedoms under the Constitution; limiting his right of access to justice by holding that he did not complain about violation of his rights before the Chief Magistrate’s court; ignoring the facts of the case and issues raised thus, arrived at a decision that was not based on evidence or constitutional provisions. 11.The appellant prayed that his appeal be allowed with costs; the judgment and decree of the High Court be set aside and his petition before the High Court be allowed as prayed with costs. 12.At plenary hearing, Mr. Abidha, learned counsel, appeared for the appellant. There was no representation for the respondents, though duly served with a hearing notice by the Court. The respondents did not also file written submissions. Mr. Abidha relied on his written submissions with brief oral highlighting. 13.Counsel submitted that the High Court erred in striking out the supporting and supplementary affidavits because the stamps of the Commissioners for Oaths had Nairobi addresses and therefore, that the affidavits must have been commissioned in Nairobi and not Siaya. Counsel argued that the Nairobi address on the stamp did not invalidate the affidavits and relied on Francis Angueyah Ominde & another v Vihiga County Executive Committee Members Finance Economic Planning and 3 others; Controller of Budget and 10 others (Interested Parties) [2021] eKLR, for the submission that the address on a Commissioner for Oaths’ stamp is not indicative of the place where the oath was administered and is not a requirement under the Oaths and Statutory Declarations Act. 14.According to counsel, an affidavit would only be invalid if there is evidence that the deponent did not appear before the Commissioner for Oaths. In the present case, the High Court could not infer from the address on the stamp alone that the petitioner did not appear before the Commissioners for Oaths. Counsel relied on Lazaro Kabebe v Ndege Makau & Another [2004] eKLR for this submission. 15.Counsel further contended that the High Court was not impartial and exhibited bias against the appellant which impaired objective consideration of the issues raised in the petition; used disparaging language and repeatedly criticized the appellant’s case; that the High Court descended into the arena of conflict by filling perceived gaps in the respondents’ case and departed from both parties’ positions in the case. In particular, counsel blamed the High Court for observing that the appellant should have produced the Occurrence Book (OB) entries from Bondo Police Station for 7th October 2018 to demonstrate that he was not booked in the OB, notwithstanding the evidence of the investigating officer on the issue; ignored evidence of witnesses that the appellant was not at the scene and they did not know why he was charged. 16.Counsel maintained that the High Court erred in finding that the appellant’s arrest, detention and prosecution were lawful despite the evidence before the Chief magistrate’s court showing that the appellant’s name was not among those arrested; that the appellant was not at the scene of crime, a fact that was supported by the findings of the trial court; that the investigating officer admitted that he did not arrest the appellant and, therefore, the basis for the appellant’s arrest and prosecution was not explained. Further, that the High Court failed to analyze the evidence and consider the issues raised in the petition thereby arrived at erroneous conclusions. 17.It was counsel’s other submission that the circumstances surrounding the appellant’s arrest, detention and prosecution demonstrated malice on the part of the respondents and relied on Chrispine Otieno Caleb v Attorney General [2014] eKLR, for the submission that malice may be express or inferred from the circumstances surrounding a prosecution, such as where the police disregarded a suspect’s version of events and proceeded on a narrative which later proved improbable and upon which no prudent person would have relied upon. Counsel again relied on Simba v Wambari (1987) KLR 601 for similar submission. 18.Regarding the relief, counsel urged this Court to grant the relief the appellant sought before the High Court, and relied on Mohamed Feisal & 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR. 19.This being a first appeal, the principles upon which this Court acts are well settled. This Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and make due allowances in this respect. (See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557(KLR). 20.We have considered the submissions made on behalf of the appellant and the applicable law. From those submissions, the broad issue for determination is whether the appellant’s rights were violated and whether he was entitled to the reliefs he sought before the High Court. 21.The appellant’s case before the high Court was that police officers assaulted, harassed and abused him during his arrest; that they did not inform him the reason his arrest; that they detained him at Bondo Police Station and later charged him in court and that he endured lengthy and burdensome criminal trial which forced him to sell property to finance legal representation and other expenses, despite there being no evidence that he had committed the alleged offences; that the arrest and prosecution was malicious and violated his constitutional rights. 22.The respondents maintained that police officers received a report regarding commission of crimes, investigated the matter; arrested the appellant and his co-accused and they were prosecuted. That the arrest was lawful; the appellant was informed the reason for his arrest and that the appellant’s constitutional rights were not violated. 23.Claims on violation of constitutional rights are serious matters and any decision the Court may make on the issue where violations are proved is not a mere decorative finding. The Court will have to redress the violation(s) sufficiently proved, by granting a constitutional remedy that would vindicate the constitutional rights violated and deter future infringements. 24.It was in recognition of the seriousness courts attach to claims of violation of constitutional rights, that the Court stated in the oft- quoted Anarita Karimi Njeru v Republic [1979] eKLR, that a constitutional petition should set out with precision the constitutional provisions violated and the manner of such violation. 25.The position in the Anarita Karimi Case was reinforced in Communication Commission of Kenya & 5 Others v Royal Media Services & 5 Others [2014] KESC 53 (KLR), where the Supreme Court of Kenya stated as follows:“[349]…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 26.In the instant appeal, the appellant argued that he was not informed the reason for his arrest; he was assaulted; harassed, abused and subjected to inhuman treatment, acts that he argued were unlawful, unfair, malicious and were laced with ulterior motive thus, amounted to violation of his rights guaranteed under Articles 27; 28; 29; 47 and 49 of the Constitution. The respondents denied the appellant’s claims, maintaining that the arrest and prosecution was lawful; that the appellant was informed the reason for his arrest and that his constitutional rights were not violated. 27.Article 27 of the Constitution guarantees everyone equality before the law and freedom from discrimination; Article 28 guarantees the right to human dignity; Article 29 guarantees the right to freedom and security of the person; Article 47 guarantees the right to fair administrative action, while Article 49 concerns the rights of accused persons. 28.We have gone through the petition, supporting affidavits; the replying affidavit and the record before the High Court. The appellant stated that the respondents’ acts limited his rights and freedoms envisaged under Articles 27, 28 and 29 of the Constitution, in that the respondents failed to accord him equal protection of the law; that the acts were irregular, unprocedural, unlawful and were instigated by the 5th respondent with malafides and were meant to subject him to physical and psychological torture. 29.The petitioner merely contended that the respondents’ actions violated those constitutional provisions without demonstrating the actual violation thereof. For instance, the appellant did not demonstrate that he was not subjected to equal protection of the law which would mean he was discriminated against. Article 27(1) of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law; clause (4) thereof prohibits the State directly or indirectly from discriminating against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth while clause (5) prohibits a person from directly or indirectly discriminating against another person on any of the grounds specified or contemplated in clause (4). Article 27 therefore prohibits all forms of negative discrimination. The appellant did not, however, show how he was discriminated against to amount to a violation of Article 27 of the Constitution. 30.Regarding Article 28, the appellant’s argument was that his arrest and assault amounted to inhuman and degrading treatment, a violation of his right to dignity and that the detention violated his right to freedom and security of the person. 31.Police officers have no right to assault an arrested and defenceless person in their custody, as that would not only amount to a criminal offence, but would also be in violation of Article 244(c) of the Constitution on the objects and functions of the National Police Service which requires the National Police Service to comply with constitutional rights and fundamental freedoms. The appellant’s claim that he was treated in an inhuman and degrading manner given the way he was arrested; that he assaulted and manhandled, was denied by the respondents. 32.On the other hand, Article 47(1) of the Constitution grants every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(1) caters for both procedural and substantive justice and any claim that rights guaranteed under Article 47(1) must be sufficiently demonstrated. The appellant did not show which aspect of Article 47(1) was violated and, if so, how. 33.Regarding Article 49 of the Constitution, the Article guarantees the rights of arrested persons, including the right to be informed the reason for the arrest; the right to be presented before a court of law as soon as is reasonably possible and within twenty four hours and to be released on bond or bail on reasonable terms. Although the appellant argued that he was not informed the reason for his arrest, the respondents maintained that he was informed the reasons for the arrest. The appellant stated that he was arrested on 7th October 2018 and was produced in court on the following day, 8th October 2018 within the constitutional timelines. 34.The High Curt considered the appellant’s claim on the violation of his constitutional rights and came to the conclusion that there was reasonable basis for his arrest and that his prosecution was lawful, and stated as follows:“ [134].In the instant case, having established that there was reasonable and probable cause to warrant the arrest and prosecution of the petitioner it is my considered view that the act of prosecuting the petitioner was warranted. Furthermore, no evidence was laid before this court to show that the Director of Public Prosecutions was party to the investigation of the petitioner’s alleged criminal conduct, or that he had no reason to exercise his discretion under Article 157(4) of the Constitution. [135]….[It] is my considered opinion that the petitioner has failed to prove his case on a balance of probabilities that his constitutional rights have been violated and as such he is not entitled to the any of the reliefs sought.” 35.We have reconsidered the evidence on record and reevaluated it ourselves. The appellant did not prove that his constitutional rights guaranteed by Articles 27, 28, 29, 47 and 49 of the Constitution were violated. It was not enough for the appellant to allege violation of his constitutional rights. This is because Article 19(3) of the Constitution is clear that rights and fundamental freedoms in the Bill of Rights belong to each individual; are not granted by the State and are subject only to the limitations contemplated in the Constitution. Further, Article 20(2) of the Constitution provides that every person should enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right and fundamental freedom. 36.In Attorney General v Kituo Cha Sheria & 7 others [2017] eKLR, this Court stated that rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largesse because they are not granted, nor are they grantable, by the State. 37.Courts, as protectors of fundamental rights and freedoms will come to the aid of a petitioner who succeeds in establishing breach of fundamental rights and grant relief in exercise of constitutional jurisdiction as a matter of course (Tinyefuze v Attorney General of Uganda [1997] UGCC 3). 38.In this appeal, the appellant having alleged that the respondents violated his rights, he had the onus to prove the violations on a balance of probabilities to entitle him to a constitutional remedy. However, the appellant did not discharge the onus of proof that the rights guaranteed under Articles 27, 28, 29, 47 and 49 of the Constitution were indeed violated. Although the appellant again alleged malice in his arrest and prosecution, he did not make any attempt to show that police officers were at fault in arresting him. Police officers received information that crimes had been committed which they reasonably believed, arrested the appellant and prosecuted hum. The appellant was found to have a case to answer and was only acquitted under section 215 of the Criminal Procedure Code. 39.The appellant did not also show that his arrest and prosecution was actuated by malice. In James Karuga Kiiru v Joseph Mwamburi & 2 others [2001] KECA 354 (KLR), this Court dismissed a claim for malicious prosecution because the appellant failed show that the prosecution acted dishonestly and without reasonable cause; that to prosecute a person is not prima facie tortious, except where it is done dishonestly or unreasonably and that malicious prosecution differs from wrongful arrest and detention. 40.That is what we find in this appeal. The appellant merely alleged that there was malice in his arrest and prosecution without demonstrating existence thereof. 41.Having reconsidered and reevaluated the evidence on record, we find no reason to differ with conclusions reached by the High Court that the appellant’s rights were not violated. 42.Before concluding this judgment, we find it necessary to address one issue regarding the striking out the appellants’ affidavits. 43.The High Court struck out the appellant’s supporting and supplementary affidavits because they were sworn at Siaya County before P.S Kisaka Advocate whose address in the commissioning stamp is Nairobi and J.M Mutisya Advocate and Commissioner for oaths also of Nairobi; that the affidavit was drawn by the petitioner’s counsel in Nairobi, commissioned without the appellant’s signature or his presence in Nairobi and was brought to Siaya for the petitioner’s signature. 44.The record of the proceedings before the High Court does not show that the appellant was asked to explain whether he appeared before the Commissioners for oaths who commissioned those affidavits. It is not clear therefore how the High Court arrived at the conclusion that the appellant did not appear before the commissioners for oaths. The fact that the address on the commissioners’ stamps was Nairobi, did not mean the Commissioners for oaths could not commission documents or administer oaths outside Nairobi. 45.A Commissioner for oaths is authorized to practice, commission documents and administer oaths within the country and cannot be limited to where the address on his or her stamp is indicated. This is clear from section 4 of the Oaths and Statutory Declarations Act which provides as follows:“A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court”The High Court did not point out any provision either in the Oaths and Statutory Declarations Act or in any other law that disallows a commissioner for Oaths from commissioning document or administering oaths outside the address indicated in his or her stamp. 46.The High Court fell into error when it stated that the petitioner signed the affidavit in Siaya after it had been commissioned in Nairobi which was not based on any evidence thereby descending into the arena of speculation. That error would not, however, affect the outcome of this appeal. 47.Ultimately, we find that this appeal lacks merit and is hereby dismissed with no order on costs. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA……………JUDGE OF APPEALE.C. MWITA……………JUDGE OF APPEALB. ONGAYA……………JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.