[2023] KEHC 25592 (KLR)

Tomno v Kihoro & another; National Police Service Commission & another (Interested Parties) (Petition E002 of 2022) [2023] KEHC 25592 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25592 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Petition E002 of 2022

RB Ngetich, J

November 16, 2023

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 24, OF THE CONSTITUTION, 2010 AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 29, 39, 47AND 49 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: THE PERSONS DEPRIVED OF LIBERTY ACT (ACT NO.23 OF 2014) LAWS OF KENYA AND AND IN THE MATTER OF THE NATIONAL POLICE SERVICE ACT (CAP 84) LAWS OF KENYA AND IN THE MATTER OF, INDEPENDENT POLICING OVERSIGHT AUTHORITY 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 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND IN THE MATTER OF UNLAWFUL ARREST, HARRASMENT AND INCERCERATION OF THE PETITIONER HEREIN ON THE NIGHTS & DAYS OF 16TH, 17TH & 18TH JUNE,2022 WITHIN MARIGAT TOWN TO BARINGO COUNTY, BY KNOWN POLICE OFFICERS BASED AT MARIGAT POLICE STATION

Between

Zachary Kibet Tomno

Petitioner

and

James Kihoro, Chief Inspector OCS Kabarnet Police Station

1st Respondent

Police Constable James Mbugua Muchiri Kabarnet Police Station

2nd Respondent

and

National Police Service Commission

Interested Party

Director of Public Prosecutions

Interested Party

Judgment

The Parties 1. The Petitioner who is a citizen of the Republic of Kenya and a resident of Baringo County brings this Petition on his own behalf.

2. The 1st Respondent is the chief inspector of police and officer commanding station (OCS) Kabarnet police station, his functions, powers, obligations and rights are spelt out under part iv of the National Police service Act (Cap 84 Laws of Kenya).

3. The 2nd Respondent is a police constable in the Kenya National police services currently stationed at Kabarnet Police station, his functions, powers, obligations and rights are spelt out under part iv of the National Police service Act (Cap 84 Laws of Kenya).

4. The 1st interested party herein, is a public body established under Article 246 of the Constitution of Kenya whose mandate includes observing due process, exercise disciplinary control over and removes persons holding or acting in offices within the National police service.

5. The 2nd interested party, the DPP, whose mandate includes but not limited to institute and prosecute criminal cases before any court of law in the Republic of Kenya.

Background 6. The Petitioner herein who is a resident of Baringo county filed this petition under 1(1), Article 2(1), Article 2(4), Article 2(5) and (6), Article 3, Article 10, Article 19, Article 20, Article 21, Article 24, Article 27, Article 28, Article 29, Article 39, Article 48, Article 49(1) and (2), Article 50(2), Article 51(1), Article 258(1) and Article 259 of the Constitution of Kenya 2010 citing court’s jurisdiction under Articles 22(1), 258 (1), 23, 165(3) (b) and (d) (ii) of the Constitution of Kenya 2010.

Petitioner’s Case 7. The Petitioner states that on the afternoon of the 13th June,2022, at around 1:00P.M, while going on his daily hustle at Kabarnet Library near Kabarnet High School at Kabarnet Town, he was accosted by some police officers who arbitrarily arrested and bungled him into a police motor vehicle and drove him to their offices at Kabarnet police station; at the Respondents offices, in Kabarnet police station he was interrogated and put into a motor vehicle driven to Kapropita then to the stadium and finally back to police station and was booked into the police cells at around 6:00P.M vide OB NO.42/13/2022 17:55 hours; that he was not informed reasons for arrest pursuant to Article 49 of the Constitution.

8. He further states that he was kept in the police cells the whole night of Monday 13th June, 2022 untill morning of the next 16: 45 P.M when he was released under Form P vide OB NO. 30/14/06/2022 16:45 HRS. He states that despite Tuesday the 14th June being a week day, he was never arraigned in court of law to be charged within the 24 hours rule and unless restrained by this Honourable court from so doing, the respondents are determined to continue with the breach of the constitutional Rights of the Petitioner herein and the public at large.

9. He states that on the 29th June, 2022, the Petitioner through the firm of Boiwo & co. Advocates lodged a complaint with the Respondents through their sub-county police commander and copied to the 1st interested party through the Inspector General and the 2nd Interested Party as well as the Respondents notifying them of his grievances and the intended action.

10. The Petitioner contends that the Respondents in arbitrarily arresting and detaining him at Kabarnet police station for 2 days from Monday 13th June, 2022 to Tuesday 14th June, 2022 at 5:00 P.M was in breach of his right to be brought before court before a Magistrate within 24 hours of being arrested and freedom of movement.

11. The petitioner argues that the respondent’s actions deprived, threatened and or interfered with his freedom and rights guaranteed under the constitution; that they discriminated against the petitioner contrary to Articles 27 of the Constitution, and violated his right to an administrative action that is efficient, lawful, reasonable and procedurally fair guaranteed under Article 47 of the Constitution of Kenya 2010.

12. The Petitioner prays that this Honourable Court be pleased to declare the impugned acts and/or omissions above cited unconstitutional and grant the following declarations and orders of redress:-i.A declaration that the conducts of the Respondents are contrary to and inconsistent with the provisions of Articles 10 of the Constitution of Kenya,2010. ii.A declaration that the Respondents violated the constitutional rights of the Petitioner and in particular Articles 20(1) and (2), 24(1), 25 (c), 27(4), 29,39,47,49, 50(1) and 51 of the Constitution of Kenya,2010. iii.A declaration that no person should be held in remand or custody for any offence for more than 24 Hours before being brought before a Magistrate Court for plea taking during weekdays and any such detention within the 24 Hours rule in a working weekday day is unconstitutional.iv.An order that the arrest and incarceration of the Petitioner for a period of 2 days by the Respondents from 17:55 hours on Monday 13th June,2022 to 16:45 Hours on Tuesday 14th June, 2022 and failing to produce him in court within 24 Hours upon arrest and yet the next day was Tuesday the 14th June, 2022 was a working week day was unconstitutional and therefore the Petitioner be set free forthwith.v.An order that the arrest and incarceration of the Petitioner for a period of 2 days without arraigning him before a magistrate from evening of Monday 13th June, 2022 to the evening of Tuesday 14th June, 2022 by the Respondents was unconstitutional.vi.An order for adequate compensation for damages for unlawful arrest and incarceration in (c), (d) and € above for deprivation of the Constitutional rights to freedom of movement and his liberty by the Respondents.vii.Any other or further reliefs that this Honourable court shall deem fit by dint of Article 23(3) of the Constitution of Kenya,2010 and are just to grant in the circumstances.viii.Costs of this petition.

The Respondents’ Case 13. In response, the Respondents filed a replying affidavit in court on the 15th September, 2022 sworn by the 2nd Respondent No. 110570 PC James Muchiri Mbugua on his behalf and on behalf of the 1st Respondent. He avers that he is the investigator with the Director of Criminal investigations and that on the 15th day of May, 2022, one Netty Jerono lodged a complaint in respect of a case of stealing contrary to section 268(1) as read with 275 of the Penal Code vide OB NO. 9/15/5/2022 at 0845Hours.

14. He avers that she reported that her items namely one mobile phone make Tecno Povour Air 3 of serial No. 353783111927384 and a hand bag containing bible, notebook, pen, Leso and other assorted items had been stolen from her house; and the stolen phone herein had two sim cards, Safaricom and Airtel line and that the Airtel line was not password protected.

15. He further states that he took up the matter as the investigations officer and commenced investigations; and on the 13th June, 2022, the complainant approached their offices and indicated that one of her sim cards Airtel of Number 0756885544 was still in use by unknown person as she had tried to reach out to the person through call but was blocked so soon thereafter.

16. He avers that they tracked the said number and their investigations led them to the petitioner herein who was found in possession of the said stolen sim card and he arrested the Petitioner while in company of the complainant and PC Dan Cheruiyot and booked the Petitioner herein at Kabarnet Police station vide OB NO. 42/13/6/2022 at 1755 Hours; and upon interrogations, the petitioner indicated that he had been given the sim card by a person he knew physically but could not give the officers the details and took the officers in circles in tying to find the persons in question.

17. He further states that the sim card was retained as well as the mobile phone using the stolen sim card and he could not forward his file for preference of charges and arraignment in court without ascertaining all the parties involved and completing investigations and proposed to release him on police bond/bail so that he could lead them to other potential parties involved in the theft.

18. He further states that the petitioner herein indicated that he did not have any money and the officers released him on P52 NOTICE vide OB NO. 31/14/06/2022 at 1645HRS and asked him to report back to the station on the 20th June,2022;and by 20th of June 2022, the petitioner had not found any of the persons he alleged had given him the sim card and or whom he was to deliver to; and at all material times the complainant was informed of the investigations progress. That the complainant was interested in out of court settlement at the point of investigations as her main goal being recovery of her lost items.

19. The respondent aver that the petitioner was not held for more than 24 hours as alleged; that investigations were completed and the petitioner was charged and arraigned at Kabarnet Law courts vide case No. E340 OF 2022 Republic vs Zachary Kibet Tomno on the 19th July, 2022 and at all material times the petitioner was not in the Respondents custody upon releasing him on the 14th June, 2022.

20. The respondent further avers that petitioner is out on bond awaiting trial; the case is ongoing and scheduled for hearing on the 3rd of October, 2022; that this petition has no merit and urged this court to dismiss it.

21. In response filed by the respondents and 1st interested party they deny the contents of the Petition in Toto and particularly that any rights of the petitioner have been violated or threatened and invite the petitioners herein to strict proof; they reiterate averments by deponent herein. The 1st interested party states in their response to the petition that they then forwarded the file to the 2nd interested party herein for purpose of preferring charges against the petitioner and was arraigned in court as captured in averments above. Further that there is no evidence provided by the petitioners as against the respondent on the alleged violation of their constitutional rights and freedoms.

22. That this petition is frivolous, mischievous, scandalous, and untenable, discloses no case of action and rises no constitutional questions warranting a constitutional petition hence is an abuse of the precious judicial time and that it is in the interest of justice that this petition be dismissed as the petitioner is a busybody looking for unjust compensation by hoodwinking this honorable court. They pray that the petition filed herein be dismissed with costs.

23. On the 6th March, 2023, the 1st Respondent filed grounds of opposition to the petition on the following grounds:-i.That the 1st Respondent herein is a constitutional commission whose creation and mandate is clearly spelt out under Article 246(3) of the Constitution of Kenya specifically related to the Human Resource Management of the members of the National Police service.ii.That the National police service is a recognized constitutional entity under Article 244 of the Constitution and which is headed by the office of the Inspector General of Police.iii.That the petition herein is primarily based on events relating to the use of the powers of arrest and investigations by the police officers, which powers are subject to the independent command of the office of the Inspector General of police as spelt out in Article 245(2)(b).iv.That section 10(g) (i) of the National Police Service Commission Act, 30 of 2011 expressly bars the commission from conducting investigations of a criminal nature.v.That the Petitioner herein has not demonstrated that the 1st interested party will aid the court in arriving at a just conclusion or carry out any orders as prayed in the petition.vi.That the 1st interested party prays to be expunged from the proceedings of this Petition.

24. Directions were given n for this petition to proceed by way of written submissions.

Petitioner’s Submissions 25. The Petitioner filed his written submissions on 30th May, 2023 identifying three issues for determination as follows:a.Whether the petition has met the threshold for petition;b.Whether the petitioner’s constitutional rights were violatedc.Whether the petitioner is entitled to the reliefs sought.

26. On the first issue, the Petitioner argues that he did offer enough evidence which were not contravened nor disputed and he has also precisely pin pointed the rights violated and how the act in question violated his rights and fundamental freedoms. He cited the case of Karimi Njeru- versus-the Republic (1976-1980) KLR, the court of appeal case in Mumo Matemu –versus- Trusted Society of Human Rights Alliance & 5 Others (2013)eKLR and in the case of Nothern Nomadic Disabled Person’s Organization(Nondo) –versus- Governor County Government of Garrisa & Another (2013) eKLR to support his case.

27. On ground one, counsel for the petitioner submits that the petitioner has cited the specific rights violated, the precise Articles of the Constitution and the supporting sections of the various relevant Acts and overwhelming evidence was tendered hence there is reasonable degree of precision of complaints, the provisions said to be infringed or likely to be infringed and manner in which they were infringed.

28. On whether the Petitioner’s constitutional rights were violated, the petitioner argues that the police did not offer anything close to a good reason for the continued detention of the arrested person and why they did not arraign him in court the whole of Tuesday 14th June, 2022 yet they arrested, locked and made him sleep in the police cell on the evening and night of Monday 13th June, 2022;and they therefore blatantly failed to present the petitioner before a competent court of law within a reasonable time as stipulated by law neither did they give any tangible reasons why they could not comply with the provisions of Article 49(1)(f) of taking the accused before court as soon as reasonably possible after arresting and detaining him on a Monday at 16:55Hours evening and detaining him through the whole of Tuesday a working day up to 1645Hours, a total of 23 hours in detention against the sole purpose of arresting a person which is to bring such person before a court of law to be charged.

29. Counsel further submits that during the hearing of this petition, the respondents did not even bother to demonstrate that they followed the procedure under the Kenya Police Act No. 11A of 2011 Laws of Kenya.

30. That the reasons given by the respondents being investigations by taking witness statements, obtaining call data on the petitioner’s cell phone, using the petitioner to get other suspects and holding the petitioner while they asses if they have enough grounds to charge him could have been accomplished without subjecting the petitioner to the cruel and the indignity act of detention. That arrest and detention amounted /to violation of the petitioner’s constitutional rights held in cases cited

31. The Petitioner submits that there was absolutely no compelling countervailing public interest and compelling grounds for the Respondents to veer off the track to warrant violating the petitioner’s constitutional rights for they did not need to detain the petitioner for such long hours for what they alleged they wanted to gather; that the Respondent’s acts points to a rampant and indeed a common police attitude and practice of blatantly violating citizens Constitutional rights and urged this court to ensure such rampant attitude and practice is nipped at the pad.

32. Counsel submitted that Article 49(1) (g) and (h) gives four scenarios on presentation of an arrested person before the courti.he may be charged, orii.he may be informed of the reasons for detention being continued say to facilitate completion of investigations oriii.his presentation for assessment of fitness to plead before court; oriv.he may be released if the court found no reasonable grounds for his continued detention; orv.he may be released on bond pending formal charge and or trial.

33. And submitted that the constitution does not say that the police may only arrest when there is prima facie evidence of an offence but it must require a probable cause for an arrest but not a prima facie case in its technical acceptation of evidence upon which a court may convict, if no evidence is given on behalf of an accused person.

34. As to whether the petitioner is entitled to the reliefs sought, the petitioner submits that he is entitled to the prayers sought for a for reason that his rights that are jealously guarded by the Constitution and the rights were unapologetically crossly violated and urge the court to find that the petitioner did prove his case on a balance of probability and that the petitioner is entitled to general, exemplary and punitive damages as against the Respondents and cited the case of Titus Barasa Makhanu V. Police Constable Simion Kinutia Gitau No. 83653 & 3 others [2016] eKLR at paragraph 59, J.L Onguto J, in awarding damages for the petitioner for being held for 3 hours, the court stated as follows:-“In the circumstances of this case and in view of my findings above, the only appropriate relief open to me under Article 23(3) of the Constitution is one that takes a compensatory form. The petitioner is entitled to some form of damages for the physical pain and suffering that he evidently underwent”.

35. Counsel cited paragraph 60, of the above decision as hereunder:-“I have placed into consideration the fact that the torture or pain inflicted whether to punish or gain unexplained pleasure was not extreme. It was violent but not brutal. It was however caused by a person sworn to uphold the law, including to protect the security of the person. I have also considered the length of time involved and the general circumstances of the case…….in my view, a fair and proportionate award as general damages would be the global amount of Kenya Shillings Two Hundred and Fifty Thousand (250,000/=).

36. The petitioner proposed compensation of kshs 5,000,0000 for unlawful arrest and false imprisonment violating on his rights of life, dignity and physical integrity based on the duration of having been detained and going by the rates of inflation of the economy currently prevailing in the country and globally. /= .

Respondents And The 1St Interested Party Submissions 37. The Respondents and interested party identified the following as issues for determination:-i.Whether the petitioner has shown precisely what provision of the constitution have been infringed by the Defendants that would in turn violate the petitioner’s constitutional rights.ii.Whether the petitioners arrest, detainment and subsequent release was unlawful.

38. On whether the petitioner has shown precisely what provisions of the Constitution have been infringed resulting in violation of the Petitioner’s Constitutional rights, counsel submit that it is a mandatory requirement for a person seeking redress from court on matters involving the constitution to set out their complaints with precision and show with clarity and indicate the manner in which those provision have been denied, infringed or violated their fundamental rights.

39. That notwithstanding numerous provisions of the constitution cited by the petitioner, he has not given particulars of how the respondents breached those provisions and cited the Locus Classicus case on constitutional petitions of Anarita Karimi Njeri vs Republic (1976-1980) KLP1272 in support of the argument.

40. On whether the petitioners arrest, detainment, and subsequent release was unlawful, they submit that the 1st, 2nd Respondent and 1st interested party acted on the basis of the National Police Service Act which mandate the police officer to detect and prevent crimes and it was only after establishing reasonable suspicion that the petitioner was arrested and charged and cited Lord Diplock in Dillion v O’Brien and David (1887) 16Cox CC 245 where he stated that;“In the case of an arrest, reasonable grounds for belief of guilt at the time of arrest are sufficient justification, though subsequent information or events may show those grounds to be deceptive”

41. The Respondents further cited the case of Republic Vs Commissiner Of Police And Another Exparte Micheal Monari 7&another (2012) eKLR where the court held stated as follows: -‘The police have a duty to investigate 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………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 ‘

42. The Respondents further submit that pursuant to Section 66(1) of the National Police Service Act, the police officers are protected from personal liability in carrying out office functions; that the criminal charges preferred against the petitioner was not in violation of the Petitioner’s constitutional rights as actions complained of by the petitioner fall within the mandate of the Respondents statutory duties.

43. And further submitted that it is worth noting that there is an active criminal matter no E340/2022 Republic Vs Zachary Kibet Tomno where the accused has been charged and argued that the petitioner herein appears to be jumping the gun by rushing to the High court yet a decision on his culpability is yet to be established; that it is an attempt by the Petitioner to hinder the Respondents from carrying out their statutory duties and it is proper for administration of criminal justice system is allowed to take its course.

44. That the petitioner has failed to demonstrate that the Respondents have acted unlawfully and or outside their powers or that the arrest was commenced without proper or reasonable foundation and concluded that the police acted within their mandate in dealing with the petitioner herein and there is nothing either unconstitutional or unlawful about how they handled the Petitioner; that Petition discloses no justifiable cause to warrant the intervention of this Honourable court and it should be dismissed with costs.

Analysis And Determination 45. I have considered averments by parties herein and submissions filed and wish to consider the following issues: -1. Whether the petitioner has proved on a balance of probabilities that his constitutional rights were violated2. Whether the petitioner is entitled to the orders sought.

(i)Whether the petitioner has proved on a balance of probabilities that his constitutional rights were violated 46. The petitioner averred that he was arrested between the period of 13th June,2022 and 14th June,2022 and whether the period of detention resulted in infringement of the Petitioner’s rights under Article 49 (1) (f) of the Constitution.

47. It is not disputed that on the 15th day of May, 2022, one Netty Jerono lodged a complaint with the respondent of theft of her properties which have been captured in paragraph 13 above and entry of complaint registered in police occurrence book vide OB NO. 9/15/5/2022 at 0845 Hours. The complaint led to arrest of petitioner and charge in stealing contrary to section 268(1) as read with 275 of the Penal Code particulars being petitioner stole complainant’s items namely one mobile phone make Tecno Povour Air 3 of serial No. 353783111927384 and a hand bag containing bible, notebook, pen, Leso and other assorted items had been stolen from her house.

48. The investigation officer averred that he commenced investigations on 13th June, 2022 the complainant approached their offices and indicated that one of complainant’s sim cards Airtel of Number 0756885544 was still in use by unknown person as she had tried to reach out to the person through call and she was blocked so soon thereafter.

49. Tracking of the stolen mobile phone led to Petitioner who was arrested and booked Kabarnet police station vide OB NO. 42/13/6/2022 at 1755 Hours and after interrogating him, he was released on the 14th June,2022 at 1645Hours. These averments have not been denied by the Petitioner save for stating that he was arrested at 1:00pm but booked at 1745Hours.

50. Article 49 (1) (f) of the Constitution. It provides as follows: -(f)to be brought to court as soon as reasonably possible, but not later than-(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours end outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day.

51. The import of the provision is to protect arrested persons against unnecessarily long detentions by the police. The respondents are obligated to comply with Article 49 (1) (f) of the Constitution. The importance of this provision was discussed by the court in Betty Jemutai Kimeiywa v Republic [2018] eKLR where the court stated as follows: -“8. There is no paradox or absurdity in the requirement of the 24-hour rule and the need for conclusive investigations into crime for the prosecution to obtain evidence to support the charge. The requirement is not calculated to defeat the Prosecution's ability to investigate and prosecute cases. The object of the 24 hour rule is to obviate prospects of extra-judicial, pre-trial detention by police authorities in contravention of the cardinal principles of the criminal process of fair trial and innocent-until-proven-guilty.9. Of course, the circumstances in which a crime has been committed may require immediate arrest of the suspect to prevent further crime, to prevent her escape or to protect the evidence or witnesses, and the nature of a serious crime, such as murder, may reasonably require more time to investigate. In the face of the 24 hour rule/requirement, the prudent thing to do is to delay the arrest until the investigations are complete and all prosecution evidence has been collected, except where the suspect is a flight risk or likely to escape, or other risk to the successful prosecution of the offence such as interference with the evidence or witnesses exists.”

52. Further in the case of Salim Kofia Chivui v. Resident Magistrate Butali Law Courts & Another [2012] eKLR, the court stated as follows:“… I therefore find and hold that the petitioner’s right under Article 49(1) (f) were breached when he was arrested on 24th March 2011, detained in police custody and arraigned before the court in Butali on 29th March 2011” … “The tenor and effect of these provisions is to protect any person in Kenya from unwarranted arrest and detention for any period over twenty-four hours or for the period necessary to secure his production in court of the next available date in any other case any detention beyond 24 hours must be authorized by court as provided by Article 49(1) (g). Once the person’s attendance has been secured within the 24 hours, the court may order the person released or may release the person pending charge or trial on bail or bond unless there are compelling reasons not to be released.”

53. The Constitution protects the rights of the arrested persons under Article 49 of the Constitution and a claim by anyone that his rights have been violated by those responsible for protecting his life and property, is a grave and serious indictment that a court that is obligated to enforce and protect rights and fundamental freedoms should not take lightly.

54. The High court is clothed with jurisdiction under Article 165(3) (b) and (d) (ii) of the Constitution to determine whether rights or fundamental freedom in the Bill of Rights have been denied, violated, or infringed. It is, however, incumbent upon the person making the claim of illegal detention, to establish the claim to the satisfaction of the court for remedy of violation of the right to issue.

55. The Petitioner stated that after being arrested on 13th June 2021 at 1p.m and taken to Kabarnet police station, he was interrogated and taken to Kapropita and later to stadium. He however did not adduce any evidence to confirm that he was arrested at 1 P.m on the 13th June,2022 and detained for more than 24 hours in the police cells at Kabarnet Police station given that the respondents also denied his claim through depositions in their replying affidavit.

56. The Petitioner admits that he was booked at 1755 Hours on the 13th June,2022 and was released on the 14th June,2022 at 1645Hours which fact has been proved by the Respondents and which to me fell within 24 Hours. It would have been proper for the petitioner to adduce evidence to confirm that he was in custody from 1p.m and not at 1755Hours time respondent stated they booked him in

57. Record attached to replying affidavit confirm that the petitioner was booked at Kabarnet Police station vide OB NO. 42/13/6/2022 at 1755 Hours and after interrogating him, he was released on the 14th June,2022 at 1645Hours. No evidence has been adduced by the petitioner to counter this evidence.

58. Sections 107 through 109 of the Evidence Act places the burden of proof on the petitioner to prove his claim on a balance of probabilities. The person who alleges existence of certain facts and who wishes the court to find in his favor based on those set of facts. Further, section 108 provides that the burden of proof in civil proceeding lies on that person who would fail if no evidence at all were given on either side unless it is provided by any law that the proof of that fact shall lie on any particular person.

59. From the foregoing, the petitioner has failed to discharge the burden to prove on a balance of probability, that he was detained for more than 24 hours as alleged by the respondents contrary to Article 49 of the constitution.

60. The petitioner further argued that his arrest was unlawful and that the intention to prosecute him was not made in good faith. Averments confirm that the petitioner was arrested following complaint being lodged and was charged and arraigned in court the next day and it is not disputed that the natter is still pending in court; in fact, in submissions petitioner submitted that he was arraigned in court after 23 hours which confirm the respondent’s assertion that he was arraigned in court within 24 hours as provided by Article 49(1)(f) of the Constitution. In view of the above, there is no basis for the petitioner to allege violation his constitutional rights and fundamental freedoms. This petition is not merited.

(ii)Whether the petitioner is entitled to reliefs sought 61. Having found that the petitioner failed to prove that the respondents violated his rights under Article 49 of the constitution, it is my finding that he is not entitled to reliefs sought and costs of the petition will follow the event.

62. Final orders: -1. This petition is hereby dismissed.2. Costs of the petition to the Respondents and interested party.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT KABARNET THIS 16TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGE