[2016] KEHC 8744 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT HOMA BAY

PETITION NO. 6 OF 2015

(FORMERLY PETITION NO. 13 OF 2011)

BETWEEN

WILLIAM NYOWINO DWALLO ……………………….………............. 1ST PETITIONER

ZEPHANIA OCHIENG OSODO ………………………………..………… 2ND PETITIONER

AND

THE ATTORNEY GENERAL …………..…………....................................... RESPONDENT

JUDGMENT

1. The petitioners have brought the petition dated 30th March 2011 seeking damages for wrongful arrest, false imprisonment and defamation of character including costs of the case. The petitioners have each sworn depositions in support of the petition. At the time material to this case, the 1st petitioner was a primary school teacher employed by the Teachers Service Commission while the 2nd petitioner was a farmer and a commercial motorcycle operator in Kochia Location within Homa Bay County.

2. Following an incident within Homa Bay that resulted in death of Humphrey Omondi Ouma and Ariro Obondo on 15th November 2007, the 1st petitioner was arrested on 21st July 2008 and arraigned in court on 7th August 2008 to plead to charges of murder in Kisii High Court Criminal Case No. 22 of 2008. The 2nd petitioner was arrested on 23rd July 2008 and was arraigned in court with the 1st petitioner on 7th August 2008.

3. While the murder trial was pending, the 1st petitioner filed an application in the High Court beingKisii Petition No. 174 of 2008 (William Nyowino Dwallo v Republic) seeking relief from the charges. By a ruling delivered on 17th November 2008, Musinga J., found as follows;

It is not in dispute that the police violated the provisions of section 72(3)(b) of the Constitution aforesaid. They have also failed to give any reason for that. In Albanus Mwasia Mutua v Republic Criminal Appeal No. 120 of 2004, the Court of Appeal held that such unexplained delay is unconstitutional and proceeded to acquit the appellant who had been sentenced to death. Likewise, I find and hold that the applicant’s constitutional right has been violated. There being no explanation for such violation, the charges against the applicant is a nullity. The applicant is ordered set at liberty unless otherwise lawfully held.

4. The respondent opposed the petition through the replying affidavit of David Kibet Lawendi, who at the material time was the Officer Commanding Kisii Police Station, sworn on 19th September 2011. He was, at the time of the incident, the acting Commanding Officer of Homa Bay Police Station. He deponed that his officers carried out investigations following an incident where two persons had died as a result of an assault incident within Homa Bay District. He deponed that all actions taken by the police were in good faith.

5. In light of the decision in Petition No. 174 of 2008 (William Nyowino Dwallo v Republic)and Petition No. 215 of 2008 which are referred to by Musinga J., in HCCR Case No. 22 of 2008 in acquitting both petitioners, it is not open to this court to determine whether the respondent violated the petitioners’ rights contrary to section 73(3) of the former Constitution as the violation had already been adjudicated upon. The respondent has not appealed against the said decision or applied to set it aside. As liability has been established, the only issue for determination is suitable relief under section 84 of the former Constitution.

6. Both appellants were charged with the offence of murder hence, the maximum period for which they could be held was 14 days. The 1st petitioner was held in custody for 17 days hence he was unlawfully detained for 3 days while the 2nd petitioner was in custody for 15 days hence he was unlawfully detained for 1 day. I therefore award the 1st petitioner Kshs. 300,000. 00 and the 2nd petitioner Kshs. 100,000. 00 as damages for unlawful detention. Although Kshs. 80,000. 00 was pleaded as special damages, the depositions do not disclose how this sum was arrived at.

7. I therefore enter judgment for the petitioners in the following terms;

I declare that the petitioners’ fundamental rights and freedoms under sections 72 of the former Constitution were contravened and violated by the police when they were held in custody in violation of section 72(3) of the former Constitution.

I award the 1st petitioner Kshs. 300,000. 00 in general damages and the 2nd petitioner Kshs. 100,000. 00 as general damages.

I award the petitioners costs of the petition which I assess at Kshs. 40,000. 00.

Interest shall accrue on damages at court rates from the date of this judgment.

DATED and DELIVERED at HOMA BAYthis 2nd day of March 2016.

D. MAJANJA

JUDGE

Mr Okoth instructed by G. S. Okoth and Company Advocates for the petitioners.