[1] The petitioner in Petition E017 of 2023 is A H G. He is a resident of Likoni within the County of Mombasa. At the time he filed the instant Petition, he was aged 20 years and was a Form Four student at T T High School in Likoni Sub-County. He averred, in his Petition dated 17th March 2023, that he was wrongfully arrested at Likoni on 2nd July 2021 on allegations that he had been found committing unnatural sexual offence. He complained that he was subjected to medical examination and tests without his consent and therefore that his constitutional right to privacy, dignity as well as fundamental freedom from discrimination, among other rights, were violated by the respondents. He consequently filed this Petition seeking the following reliefs:
[a] A declaration that the action of the 2nd and 3rd respondents of carrying out a forced anal and genital examination upon the petitioner amounted to a violation of the petitioner’s rights under Articles 27, 28, 29, 31, 49 and 50 of the Constitution.
[b] A declaration that the action of the 2nd respondent in forcing the petitioner to undergo an HIV and/or publishing his results amounted to a violation of the petitioner’s rights under Articles 28, 29, 31, 49 and 50 of the Constitution.
[c] A declaration that the actions of the 2nd and 3rd respondents were in violation of Sections 13, 14, 17, 18, 22 and 27 of the HIV and AIDS Prevention and Control Act, No. 14 of 2006.
[d] A declaration that any information, record, document, exhibit, result or confession obtained or prepared from the forced anal and genital examination, HIV test and other medical tests or procedures conducted by the respondents are inadmissible in a criminal trial against the petitioner.
[e] A declaration that the failure by the 2nd respondent to inform the petitioner of his rights and the failure to observe those rights amounted to violation of the petitioner’s rights under Articles 49 and 50 of the Constitution.
[f] An order of prohibition prohibiting the 1st and 2nd respondents from prosecuting the petitioner in Mombasa Chief Magistrate’s Sexual Offence No. E089 of 2021: Republic v A H G and Mombasa Chief Magistrate’s Sexual Offence Case No. E088 of 2021: Republic v D M and A H G.
[g] An order of certiorari to bring to this Court and quash the decision of the 1st and 2nd respondents to charge and prosecute the petitioner in Mombasa Chief Magistrate’s Sexual Offence No. E089 of 2021: Republic v A H G and Mombasa Chief Magistrate’s Sexual Offence Case No. E088 of 2021: Republic v D M and A H G.
[h] General damages.
[i] Any other relief that the Court deems fit to grant under the circumstances.
[j] Costs of the Petition.
[2] The petitioner averred, both in his Petition and its Supporting Affidavit sworn on 17th March 2022, that he is an adult male of sound mind, aged 20 years. He was a Form 4 student in 2021 when he and D M, the petitioner in Mombasa High Court Petition No. E018 of 2023, were arrested at Likoni area of Mombasa by police officers from Inuka Police Station. They were then taken to Inuka Police Station where on arrival, he was ordered to surrender his mobile phone and disclose the password. He further averred that thereafter, he was ordered into another room where he was interrogated by three police officers and ordered to admit that he was gay. He identified one of the police officers as PC Mwinyi.
[3] The petitioner further averred that, at about 4.00 p.m. the two of them were escorted by PC Mwinyi to Likoni Sub-County Hospital. He was presented before a man who donned a pair of gloves. He stated that, without further ado, the man told him to undress and lie down on the couch for anal and genital examination. The petitioner added that he complied with those instructions, was examined and swabs taken of his anus and genitalia in the presence of PC Mwinyi.
[4] He further stated that was then escorted to another room where his blood sample was taken. He explained that D M was subjected to the same treatment before they were taken back to Inuka Police Station. The petitioner was subsequently charged and arraigned before Mombasa Chief Magistrate’s Court in Mombasa Chief Magistrate’s Sexual Offences Case No. E089 of 2021. The case was later consolidated with Mombasa Chief Magistrate’s Sexual Offence Case No. E088 of 2021, with the latter case as the lead file.
[5] The petitioner contended that he was never informed of the reason for his arrest at the time of his arrest; that he was never advised of his right to keep silent or the consequences of not keeping silent; that he was compelled against his will to make confessions and hand over to the police information to be used in evidence against him; that at no time did he give his consent for his phone to be taken from him by the police, or for his password and protections to be removed and his communication to be accessed by the police; that at no time did he give his consent, informed or otherwise to the medical examination or any of the tests that were undertaken on him at the Likoni Sub-District Hospital and the same were for all intents and purposes forced on him.
[6] Regarding the medical examination and tests conducted on him at Likoni Sub-District Hospital, the petitioner averred that the procedures and the conditions under which they were carried out were deeply intrusive, profoundly humiliating and deeply traumatizing. He also averred that he was physically assaulted by police officers during interrogation. He consequently posited that all these actions amounted to violation of his rights and fundamental freedoms. In particular, the petitioner alleged the following violations:
[a] His inherent right to dignity and the right to have that dignity respected and protected under Article 28 of the Constitution and Article 10 of the International Covenant on Civil and Political Rights (ICCPR).
[b] His right to freedom and security of the person which includes the right not to be;
[i] subjected to any form of violence from either the public or private sources under Article 29(c) of the Constitution and Article 9 of the ICCPR;
[ii] subjected to torture in any manner, whether physical or psychological under Article 29(d) of the Constitution and Article 7 of the ICCPR.
[iii] treated or punished in a cruel, inhuman or degrading manner under Article 29(f) of the Constitution, Article 7 of the ICCPR, Article 16 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Articles 4 and 5 of the African Charter on Human and Peoples’ Rights.
[c] His right to privacy under Article 31 of the Constitution and Article 17 of the ICCPR.
[d] His right to remain silent under Article 49(1)(b) of the Constitution.
[e] His right not to be compelled to make any confession or admission that could be used in evidence against him under Article 49(1)(d) of the Constitution and Article 14 of the ICCPR and Article 15 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
[f] His right to equality and freedom from discrimination guaranteed under Article 27 of the Constitution.
[g] His right not to give self-incriminating evidence under Article 50 of the Constitution.
[7] Accordingly, the petitioner approached the Court pursuant to Articles 22(1), 23, 165 and 258 of the Constitution for redress.
[8] The respondents opposed the Petition. On behalf of the 3rd respondent, Grounds of Opposition were filed herein dated 16th May 2023 by Ms. Kisingo, duly instructed by the Office of the County Attorney, contending that:
[a] The Petition does not reveal any cause of action against the 3rd respondent.
[b] The Petition does not meet the threshold required for constitutional petitions.
[c] The actions of the 3rd respondent, if any, were lawful and therefore the Petition is ill advised.
[d] The Petition is an abuse of the court process and should be dismissed with costs to the 3rd respondent.
[9] In addition to the Grounds of Opposition dated 16th May 2023, the 3rd respondent filed a Replying Affidavit to the Petition, sworn Victor Obanda Were, a Clinical Officer deployed at Likoni Sub-County Hospital. He averred that he was on duty sometime in July 2021 when the petitioner was presented to him at their facility by police officers for medical examination. He deposed that, as a medical officer, his duty was to ensure that privacy was maintained during the examination and that the petitioner was accorded the dignity and respect he required during the exercise for purposes of maintaining professional ethics and respecting the rights of the petitioner as a human being.
[10] The affiant further averred that he was fully aware that he was not supposed to proceed with the examination without the petitioner’s consent; and therefore he ensured that the petitioner signed a consent form to signify that he had agreed to the medical examination being conducted on him. It was therefore the assertion of Mr. Were that all the allegations by the petitioner against the 3rd respondent are false because he treated the petitioner with utmost respect during examination. He added that if the petitioner faced any human rights violations then the same did not occur at the Likoni Sub-County Hospital.
[11] On behalf of the 2nd respondent a Replying Affidavit was sworn and filed herein by No. 81901 PC Mwinyihaji Mohamed. He averred that the petitioner is an accused person in Mombasa Chief Magistrate’s Sexual Offence No. E089 of 2021 in which he is the investigating officer. He further averred that the 2nd respondent is mandated under Article 245 of the Constitution to investigate crime and apprehend suspects for purposes of prosecution upon reason grounds being established for such arrest.
[12] PC Mwinyi accordingly averred that the petitioner was taken to Inuka Police Station out of public outcry that he was found engaging in the commission of unnatural offence with one D M and was booked in custody out of concern for his own safety. He added that he thereafter escorted the two suspects to Likoni Sub-County Hospital for purposes of medical investigations in compliance with Articles 24, 25, 49, 51 and Section 122(C) of the Penal Code. PC Mwinyi posited that the arrest and presentation of the petitioner for medical test was done within the parameters of the law without any force, coercion or intimidation.
[13] PC Mwinyi however denied having escorted the petitioner for HIV testing and put the petitioner to strict proof thereof. He similarly denied that the petitioner was ever assaulted by police officers in the course of interrogation as alleged by him. He therefore prayed for the dismissal of the Petition contending that it raises no constitutional issues.
[14] It is noteworthy that this Petition was filed alongside Mombasa High Court Petition No. E018 of 2023: D M v the Director of Public Prosecutions & Others. D M was arrested at the same time and in connection with the same allegations. Since D M was subjected to the same treatment as the petitioner, similar allegations were pleaded against the respondents by D M. At the instance of the parties, the two petitions were consolidated for purposes of expeditious disposal. Accordingly, the petitioner in High Court Petition No. E017 of 2023 will henceforth be referred to as the 1st petitioner, while the petitioner in High Court Petition No. E018 the 2nd petitioner.
[15] The 1st petitioner testified herein on 3rd July 2023 as PW1 and adopted his Supporting Affidavit sworn on 17th March 2022. He confirmed that he was arrested with D M on 2nd July 2021 at about 10.00 a.m. and taken to Inuka Police Station. He reiterated the contents of his affidavit as to his interrogation, examination and subsequent arraignment on a charge of unnatural offence.
[16] D M (the 2nd petitioner) testified as PW2. He adopted the averments set out in his Supporting Affidavit sworn on 17th March 2023. He confirmed that he was at home in Likoni when police officers arrested him alongside PW1. They were taken to Inuka Police Station and placed in custody before being escorted to Manyatta Hospital in Likoni by a police officer he came to know as PC Munyi. He confirmed that he was subjected to physical examination and certain tests at the Hospital while under the guard of armed police officers. He was categorical that the examination and tests done at Manyatta Hospital were done without his consent.
[17] On behalf of the 1st, 2nd and 4th respondents, PC Mwinyihaji Mohamed (DW1) testified in this matter on 21st September 2023. He was then attached to Inuka Police Station and was the investigating officer in the police case against the two petitioners. His testimony was that a complaint was made against the two petitioner on the 2nd July 2021 to the effect that they had been found committing an unnatural offence. The matter was thereafter allocated to him for investigations. He therefore confirmed that, together with other officers, they arrested the two petitioners and escorted them to the hospital for examination on 2nd July 2021.
[18] It was further the evidence of DW1 that, upon concluding their investigations, he caused the two to be charged with a sexual offence vide Mombasa Sexual Offence Case No. E089 of 2022; but that the case was later withdrawn under Section 87(a) of the Criminal Procedure Code. He produced the medical documents as exhibits in this case. He denied any wrongdoing and reiterated that medical examination was a necessary part of their investigations in view of the complaint filed against the petitioners.
[19] PC Habiba Huka, a police officer based at Inuka Police Station, testified as DW2. She adopted her witness statement dated 25th May 2023. She was one of the investigating officers. She confirmed the arrest of the petitioners and the fact that they were taken to hospital for examination. She confirmed that, while recording the statements of the petitioners, she went through the messages they sent to each other via their cell phones. She buttressed the evidence of DW1 that they had sufficient cause for arresting and charging the petitioners with a sexual offence.
[20] The last witness for the respondents was Victor Obanda Were (DW3). At the time of his testimony DW3 was serving as a Clinical Officer in charge of Gender Based Violence clients. He adopted his witness statement dated 27th July 2023. In essence, his testimony was that, while on duty, the petitioners were presented for examination on the allegation that they had been found engaging in the act of sexual intercourse. He stated that he explained the purpose of the examination to the petitioners and obtained their consent before undertaking the examination. He produced the medical notes and reports for each of the petitioners as exhibits herein.
[21] In their closing submissions, the petitioners proposed the following issues for determination:
[a] Whether the actions of the respondents of carrying out forced examination upon them amounted to a violation of their rights under Articles 28, 29, 31, 49 and 50 of the Constitution.
[b] Whether the action of the police in forcing the petitioners to undergo HIV test and publishing the results amounted to violation of their rights under Articles 28, 29, 31, 49 and 50 of the Constitution.
[c] Whether the information, records, documents, exhibits, results or confession obtained or prepared from the forced tests are admissible in a criminal trial against them.
[22] With regard to their allegations of forced examination, the petitioners submitted on the right to human dignity under Article 28 of the Constitution with reference to Article 10 of the International Covenant on Civil and Political rights, Article 4 of the African Charter on Human and Peoples Rights as well as the cases of M W K v Attorney General [2017] eKLR and Ahmed Issack Hassan v Auditor General [2015] eKLR. They underscored their contention that the right to human dignity is the foundation of all the other rights.
[23] In support of their allegation of violations under Article 29 of the Constitution, the petitioners relied on Titus Barasa Mahanu v Police Constable Simon Kinuthia Gitau [2016] eKLR and Joseph Njuguna Mwaura and 2 others v Republic [2013] eKLR to submit that, on the basis of the evidence presented by them, they have demonstrated that the respondents subjected them to inhuman and degrading treatment. Similarly, they submitted that their right to privacy under Article 31 was violated when they were forced to undress and expose their genitalia for examination in the presence of at least 4 people and in disclosing their HIV tests results to other persons. They relied on Kenya Human Rights Commission v Commissions Authority of Kenya & Others [2018] eKLR, among other authorities to buttress their arguments.
[24] In respect to the respondent’s assertion that the petitioners gave consent to the examination and tests conducted on them, counsel for the petitioners submitted that what is envisaged by the applicable law is informed consent. Counsel relied on L A W & 2 others v Marura Maternity & Nursing Home & 3 others; International (Community of Women Living with HIV (ICW) (Interested Party); Secretariat of the Joint United Nations Programme on HIV/AIDS & 2 others (Amicus Curiae) (Constitutional Petition No. 606 of 2014) [2022] KEHC 17132 (KLR) and R A O v M G H & 2 others [2020] eKLR in support of the petitioners’ arguments.
[25] The petitioners also submitted on their contention that their rights to fair trial were violated in that the respondents set out to obtain evidence against them in disregard of the constitutional safeguards provided for in Article 50(2) of the Constitution by compelling them to undergo tests and procedures whose results were intended to be presented against them in Mombasa Magistrate’s Sexual Offence Case No. 88 of 2021. They relied on R C v K K R [2021] eKLR and urged the Court to declare the evidence inadmissible under Article 59 of the Constitution.
[26] On the basis of the foregoing submissions, the petitioners prayed for declaratory orders in their favour as set out in their Petition. In addition, they prayed for an award of general damages for violation of their constitutional rights and fundamental freedoms in the sum of Kshs. 2,000,000/= each. The case of Ngugi v County Government of Nakuru & another (Petition E21 of 2021) [2023] KEHC 22624 (KLR) (25 September 2023) (Judgment) was cited in support of the proposal.
[27] The 3rd respondent filed written submissions dated 2nd April 2024 and proposed the following issues for determination:
[a] Whether the medical examination was a violation of the petitioner’s right to privacy and non-discrimination, right to protections against torture and cruel, inhuman or degrading treatment or punishment, right to human dignity or security of the person.
[b] Whether Section 162(a) and (c) and 13 of the Penal Code, Chapter 63 of the Laws of Kenya are unconstitutional.
[28] The 3rd respondent submitted on Section 26 of the Sexual Offences Act as well as Section 36 of the Penal Code as the provisions that permitted the tests and procedures performed on the petitioners. The case of C O L & another v Resident Magistrate Kwale Law Courts & 4 others [2016] eKLR was cited for the proposition that courts must balance the enforcement of a right against the various interests and values provided for in the Constitution, such as public interest and policies. According to the 3rd respondent, the medical examination of the petitioners was in accord with the applicable law and cannot amount to violation of any of the petitioners’ rights.
[29] With regard to the 1st petitioner’s allegations of physical assault, the 3rd respondent submitted that no report or complaint was made in that regard to any relevant authority. The 3rd respondent also urged the Court to find that the 1st petitioner did not produce any evidence to corroborate his testimony. Thus, the 3rd respondent urged the court to disregard this aspect of the Petition. On the alleged violation of the petitioners’ right to privacy, the 3rd respondent urged the Court to rely on the evidence presented by the Defence and find that DW3 was alone in the examination room when he examined the petitioners.
[30] As to the purpose of the examination, the 3rd respondent reiterated that the police were out to obtain evidence for onward transmission to the 1st respondent with a view of preferring charges of committing unnatural offence contrary to Section 162(a) of the Penal Code against the petitioners. The 3rd respondent further submitted that it was necessary in the circumstances for the petitioners to be examined; and therefore that there was justification for the curtailment of their right to privacy for purposes of Article 24 of the Constitution.
[31] The 3rd respondent also submitted on the constitutionality of Section 162(a) and (c) and 13 of the Penal Code, and pointed out that a three-judge bench determined the same in E G & 7 others v Attorney General; D K M & 9 others (Interested Parties); Katiba Institute and another (Amicus Curiae) where the judges stated that the paramountcy of the Constitution must be upheld at all times; and that the entire Constitution has to be read as an integrated whole with not particular provision destroying the other. In conclusion, the 3rd respondent also prayed for the dismissal of the Petition with costs.
[32] From the foregoing summary, it is common ground that petitioners were arrested on 2nd July 2021 by police officers from Inuka Police Station; and that they were taken to Likoni Sub County Hospital for medical examination and HIV test. It is also not in dispute that the petitioners signed consent forms for the examination and tests; and that the results were handed over to the investigating officer, PC Mwinyi (DW1). Moreover, it is agreed that the two petitioners were thereafter charged with the offence of committing an unnatural offence contrary to Section 162(c) of the Penal Code in Mombasa MCSO No. 88 of 2021 and Mombasa MCSO No. 88 of 2021.
[33] Granted the evidence of DW1 that the lower court matter was withdrawn under Section 87(a) of the Criminal Procedure Code, the aspect of the Petition relating to the prosecution of the petitioners in Mombasa MCSO No. 88 of 2021 and Mombasa MCSO No. 88 of 2021 are now moot. In their prayers 4, 6 and 7 of the consolidated Petitions, the petitioners prayed for:
[a] A declaration that any information, record, document, exhibit, result or confession obtained or prepared from the forced anal and genital examination, HIV test and other medical tests or procedures are inadmissible in a criminal trial against the petitioner.
[b] An order of prohibition prohibiting the 1st and 2nd respondents from prosecuting the petitioners in Mombasa Chief Magistrate’s Sexual Offence No. E089 of 2021: Republic v A H G and Mombasa Chief Magistrate’s Sexual Offence Case No. E088 of 2021: Republic v D M and A H G.
[c] An order of certiorari be issued to bring to this Court and quash the decision of the 1st and 2nd respondents to charge and prosecute the petitioner in Mombasa Chief Magistrate’s Sexual Offence No. E089 of 2021: Republic v A H G and Mombasa Chief Magistrate’s Sexual Offence Case No. E088 of 2021: Republic v D M and A H G.
[34] If, as has been stated, the lower court case has been withdrawn, the above orders are no longer tenable. It is a cardinal principle that a court of law should not act in vain. Indeed, according to Black’s Law Dictionary, Tenth Edition, at page 1161, a “moot case” is defined as “A matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights.”
[35] In Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi (Judicial Review 441 of 2018) [2019] KEHC 2059 (KLR) (Judicial Review) (25 November 2019) (Judgment), the Court held:
23. A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.
24. It is trite that as a general principle, the rights and liabilities of parties to any judicial proceedings pending before court are determined in accordance with the law as it was at the time when the suit was instituted and by applying the facts to the law and circumstances. Time and again, it has been expressed that a court should not act in vain.[15]
25. No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity.[16]
26. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.”
[36] It is for the same reason that I find it unnecessary to pronounce myself on the constitutionality or other wise of On unconstitutionality of Section 162(1) of the Penal Code. Therefore, the issues for determination are:
[a] Whether the action of the 2nd and 3rd respondents of carrying out anal and genital examination upon the petitioner amounted to a violation of the petitioner’s rights under Articles 27, 28, 29, 31, 49 and 50 of the Constitution.
[b] Whether the action of the 2nd respondent in causing the petitioner to undergo an HIV and publishing his results amounted to a violation of the petitioner’s rights under Articles 28, 29, 31, 49 and 50 of the Constitution; and if so,
[c] Whether the petitioners are entitled to compensation for the violation.
[37] Article 22(1) of the Constitution is explicit that:
“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”
[38] It is nevertheless imperative that a clear connection be made between the provision of the Constitution alleged to have been violated or threatened with violation and the basis for the allegation. This was explicated in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra) thus:
“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 vs. Republic (1979) KLR 154: the necessity to link between the aggrieved party, the provision of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement...”
[39] The Constitution itself states how it ought to be interpreted. Article 259(1) states:
“This Constitution shall be interpreted in a manner that—
- promotes its purposes, values and principles;
- advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
- permits the development of the law; and
- contributes to good governance.”
[40] Accordingly, in the Ugandan case of Tinyefuza v Attorney General Constitutional Appeal No. 1 of 1997 [UGCC] 3, the court held as follows:
“The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.”
[41] And, in the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, the Supreme Court held as follows: -
“[54] Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”
[42] In terms of the burden of proof, the Supreme Court pronounced itself in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR, as follows:
“[47] It is a timeless rule of the common law tradition, Kenya’s juristic heritage, and one of fair and pragmatic conception, that the party making an averment in validation of a claim, is always the one to establish the plain veracity of the claim. In civil claims, the standard of proof is the “balance of probability”. Balance of probability is a concept deeply linked to the perceptible fact-scenario: so there has to be evidence, on the basis of which the Court can determine that it was more probable than not, that the Respondent bore responsibility, in whole or in part.
[43] The position was reiterated by the Supreme Court in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) thus:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[44] With the foregoing in mind, I have given due consideration to the issues aforementioned and the averments of the petitioners in the light of the pertinent provisions of the Constitution as follows:
A. On whether the action of the 2nd and 3rd respondents of carrying out anal and genital examination upon the petitioner amounted to a violation of the petitioner’s rights under Articles 27, 28, 29, 31, 49 and 50 of the Constitution:
[45] Article 27 of the Constitution provides as follows in its Sub-Articles (1) and (2):
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
[46] And, according to Black’s Law Dictionary, “discrimination” is defined to mean:
“Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”
[47] In Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR it was held that:
“...discrimination, simply put, is any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups…The Constitution advocates for non-discrimination as a fundamental right which guarantees that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. It must however be borne in mind that it is not every distinction or differentiation in treatment that amounts to discrimination. Discrimination as seen from the definitions, will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim.”
[48] Thus, it was incumbent upon the petitioners to demonstrate that they were given differential treatment from the way prisoners in similar circumstances were treated by the respondents. No such evidence was presented. It is therefore my considered finding that the contention by the petitioner that he has been discriminated against is untenable.
[49] There is no gainsaying that the right to human dignity is, in essence an affirmation and an integral aspect of the other rights and fundamental freedoms enshrined in the Constitution. The right to dignity is provided for in Article 28 of the Constitution as follows:
“Every person has inherent dignity and the right to have that dignity respected and protected.”
[50] This constitutional imperative was discussed in Ahmed Issack Hassan v Auditor General (supra) in which the Court held:
“The right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights…if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated.”
[51] Similarly, in Constitutional Petition No. E321 of 2021: Liburuwen Kasanguru Kweri v Beehive Media Limited, the Court held:
“122.Turning to the defamatory claim which is based on article 28 of the Constitution, it is apparent that the claim is based on whether article 31 of the Constitution is found have been infringed. I say so because in the event it is found that the article 31 rights were not infringed, then the claim on defamation will not stand.
123.Going by the holding in respect to the article 31 rights above, it is only prudent that the claim on constitutional defamation do await the outcome of the dispute on article 31 of the Constitution.”
[52] The right is also underscored in Article 10 of the International Covenant on Civil and Political Rights (ICCPR) which is applicable locally by dint of Article 2 of the Constitution.
[53] Given the all-encompassing nature of the right to dignity, it is pertinent, in the context of this case, to consider it alongside the right to freedom and security of the person under Article 29 and the right to privacy under Article 31 of the Constitution. I entirely agree with the position taken by Hon. Mativo, J. (as he then was) in M W K & another v Attorney General & 3 others (supra) that:
“Privacy fosters human dignity insofar as it is premised on and protects an individual’s entitlement to a ‘sphere of private intimacy and autonomy. The rights of equality and dignity are closely related as are the rights of dignity and privacy.”
[54] Article 29 states that:
“Every person has the right to freedom and security of the person, which includes the right not to be—
(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.”
[55] In Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau [2016] eKLR, it was held:
“Article 29 of the Constitution combines a right to freedom and security of the person with a right to be free from bodily and psychological integrity. It is essentially intended to protect the physical integrity and dignity of the individual. The rights not to be subjected to torture in any manner or not to be treated or punished in a cruel, inhuman or degrading manner are components of the right to freedom and security of the person. These two components (torture on the one hand and cruel, inhuman and degrading manner on the other) are, under Article 25(a) of the Constitution, inviolate rights. No law can be allowed to stand if such law seeks to blemish or limit such right or freedom. They are absolute rights unless the Constitution itself expresses otherwise.
[56] The petitioners hinged their case in this regard on Sub-Articles (c), (d) and (f). The 1st petitioner, in particular, testified that he was subjected to physical violence in the course of interrogation at Inuka Police Station and was dragged on the hard floor surface back to the cells. He added that, in the process the pair of short trousers he was wearing got torn. Article 29(c) of the Constitution and Article 9 of the ICCPR protect the right not to be subjected to torture in any manner, whether physical or psychological. The same protection is provided for under Article 29(d) of the Constitution and Article 7 of the ICCPR.
[57] It is notable however that, other than the testimony of the 1st petitioner, which was vehemently denied by the DW1 and DW2, there was no other supporting evidence other than the affirmation by PW2 that when the 1st petitioner returned from interrogation, he was crying saying he had been beaten to make a statement. PW2 conceded that he did not witness the assault; and therefore the question to pose is whether the hearsay evidence presented by PW2 is sufficient corroboration of the evidence of PW1 on the alleged violation of the 1st petitioner’s right under Article 29(c) of the Constitution.
[58] It is significant that PW2 made no mention of any visible signs of assault. He did not confirm having noticed that the 1st petitioner’s shorts were indeed torn upon his return to the cells. The P3 produced herein is to the effect that the 1st petitioner was normal on the head, neck, thorax, abdomen upper limbs and lower limbs. He raised no complaint of assault when he was presented before DW3. It is also surprising that the 1st petitioner did not raise his complaint of assault when he was arraigned before the magistrate’s court in Mombasa MCSO Case No. 88 of 2021. And, although he complained, over two years later when he gave his testimony that he was still feeling pain on the chest, there was no attempt to seek medical attention. His excuse that he no money is not credible granted that there are public hospitals that could have offered him the necessary treatment and examination free of charge.
[59] In the premises, I am not convinced that sufficient evidence has been presented by the petitioners to buttress the assertions of physical assault by the 1st petitioner.
[60] The same conclusion applies to the allegations that the 1st petitioner was treated in a cruel, inhuman or degrading manner under Article 29(f) of the Constitution, Article 7 of the ICCPR, Article 16 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Articles 4 and 5 of the African Charter on Human and Peoples’ Rights.
[61] As to whether the petitioners’ right to privacy under Article 31 of the Constitution and Article 17 of the ICCPR was violated, their complaint was that they were subjected to a humiliating examination in the presence of third parties. Article 31 states:
“Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
[62] In Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR, a 5-judge bench held:
“Protecting privacy is necessary if an individual is to live an autonomous, independent life, enjoy mental happiness, develop a variety of diverse interpersonal relationships, formulate unique ideas, opinions, beliefs and ways of living and participate in a democratic pluralistic society. The importance of privacy to an individual and society certainly justices the conclusion that it is a fundamental social value, and should be vigorously protected in law. Each intrusion upon private life is demeaning not only to the dignity and spirit of the individual, but also to the integrity of the society of which the individual is part.”
[63] A similar position was taken in Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR as follows:
“Privacy, dignity, identity and reputation are facets of personality. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be let alone. Personal choices governing a way of life are intrinsic to privacy. Privacy attaches to the person since it is an essential facet of the dignity of the human being…The right to privacy is a fundamental right. It protects the inner sphere of the individual from interference from both State and non-state actors and allows individuals to make autonomous life choices.
[64] The Court further stated:
“Privacy is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. It also supports and reinforces other rights such as freedom of expression, information, and association. The right to privacy embodies the presumption that individuals should have an area of autonomous development, interactions, and liberty, a “private sphere” with or without interaction with others, free from arbitrary state intervention and from excessive unsolicited intervention by other uninvited individuals. Activities that restrict the right to privacy … can only be justified when they are prescribed by law, necessary to achieve a legitimate aim and proportionate to the aim pursued.”
[65] There is uncontroverted evidence that the petitioners were prevailed upon to submit to intrusive examinations and tests. In particular, they were subjected to anal and penile examination with a view of verifying the complaint that they were found in the act of engaging in an unnatural sexual activity. It is also common ground that they were subjected to HIV test with a view of ascertaining their HIV status.
[66] In full acknowledgment of their awareness that such intrusive tests require consent, the respondents adduced evidence to the effect that the petitioners consented to the procedures and tests performed on them on the 2nd July 2021. In Y F v Turkey for instance, the European Court of Human Rights held:
“…while the Court accepts the Government’s submission that the medical examination of detainees by a forensic doctor can prove to be a significant safeguard against false accusations of sexual molestation or ill-treatment, it considers that any interference with a person’s physical integrity must be prescribed by law and requires the consent of that person. Otherwise a person in a vulnerable situation, such as a detainee, would be deprived of legal guarantees against arbitrary acts…”
[67] Hence, the respondents relied on Section 36 of the Sexual Offences Act, Cap 62 of the Laws of Kenya. Subsection (1) thereof states:
“Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.”
[68] It is immediately plain that this provision cannot avail the defence. First and foremost, the petitioners had not been charged with committing an offence, let alone an offence under the Sexual Offences Act when the intrusive examination was done on them. Secondly, and more importantly, no court order was obtained beforehand for the samples to be taken by DW3. The provision is clear that it is only after a court has given directions under Subsection (1) that a medical practitioner can take appropriate samples from an accused person. In this regard, Subsection (5) is explicit that:
(5) Where a court has given directions under subsection (1), any medical practitioner or designated person shall, if so requested in writing by a police officer above the rank of a constable, take an appropriate sample or samples from the accused person concerned.
(6) An appropriate sample or samples taken in terms of subsection (5)—
(a) shall consist of blood, urine or other tissue or substance as may be determined by the medical practitioner or designated person concerned, in such quantity as is reasonably necessary for the purpose of gathering evidence in ascertaining whether or not the accused person committed an offence or not; and
(b) in the case of blood or tissue sample, shall be taken from a part of the accused person’s body selected by the medical practitioner or designated person concerned in accordance with accepted medical practice.
[69] Regulation 5 of the Sexual Offences (Medical Treatment) Regulations, 2012 is couched in similar terms. It provides:
“(1) A court may order the collection of the appropriate samples from any person who has been charged with a sexual offence, under the Act, at such place and subject to such conditions that the court may specify.
(2) Upon receiving an order made under paragraph (I), a police officer of any rank above the rank of police constable shall request any medical practitioner or designated person to take the appropriate samples from the person charged with a sexual offence.
(3) The medical practitioner or designated person shall determine the samples to take, the parts of the body from which the samples shall be taken from and the quantity that is reasonably necessary in accordance with the national guidelines for the management of sexual violence.”
[70] Needless to say that there was no compliance by the respondents with the aforementioned provisions of the law. The respondents were of the posturing that the petitioners consented to the examination and taking of blood samples from them. Hence they pleaded immunity for purposes of Section 36(7) and 42 of the Sexual Offences Act. Section 36(7) provides as follows:
“Without prejudice to any other defence or limitation that may be available under any law, no claim shall lie and no set-off shall operate against—
(a) the State;
(b) any Minister; or
(c) any medical practitioner or designated persons,
in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate sample in terms of subsection (5), unless the taking was unreasonable or done in bad faith or the person who took the sample was culpably ignorant and negligent.”
[71] Section 42 on the other hand provides that:
“For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.”
[72] In this instance, credible and uncontroverted evidence was adduced herein by the petitioners to the effect that they were taken to Likoni Sub County Health Centre under armed guard of no less than 5 police officers. They therefore lacked the requisite freedom to consent to the intrusive tests and procedures in issue. They in fact denied having given their consent and contended that they were compelled to sign documents which they later got to learn were consent forms.
[73] Although the defence pointed out that the petitioners were literate and therefore ought to have read the documents before appending their signatures thereon, the petitioners were categorical that they were forced to sign the documents without being given an opportunity to read and understand their contents. The onus of proof was therefore on the respondents, especially DW1 and DW3 who were in a position of dominance to demonstrate that the petitioners understood the nature of the documents they were signing; and that the outcome of the tests would be used in evidence. In other words, it was not enough that the petitioners gave consent; acceptable consent in such instances must be informed consent.
[74] What amounts to informed consent for purposes of voluntary HIV testing and treatment was discussed in C N M v Karen Hospital Ltd, HAT NO. 008 of 2015 thus:
“Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available. We hasten to add that there is a big difference between consent and informed consent. A person who has given consent to HIV testing may nevertheless sue on the ground that he did not give “informed consent”. HAPCA does not simply require “consent”. It requires “informed consent”. What then are the ingredients of informed consent in law?”
In medical treatment, requiring invasive procedures, the doctor or health care personnel is required to disclose sufficient information to the patient to enable the patient to give an informed consent. Informed consent for HIV testing means that the person being tested for HIV agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed. The requirement of informed consent is intended to uphold the dignity of the patient. It proceeds on the theory that the patient does not lose his dignity simply because he has fallen sick or because he does not know what his treatment will entail, which treatment option is better than the other, or others, and what risks are associated with any or all the available treatment options.”
[75] In this instance, the petitioners did not voluntarily submit to the examination and testing for purposes of treatment, but were subjected to the same as part of evidence gathering by the 1st and 2nd respondents. There was therefore an additional reason for informed consent on the part of the petitioners. It must be borne in mind that, as arrested persons, the petitioners had the right to remain silent under Article 49(1)(b) of the Constitution. It was therefore extremely important for the respondents to explain the purpose of the test and to caution the petitioners that they intended to use the information in criminal proceedings against them before obtaining their written consent.
[76] In terms of handling of the results of HIV test, Section 18 of the HIV And Aids Prevention and Control Act, No. 14 of 2006 provide that:
“The results of an HIV test shall be confidential and shall only be released to the tested person.”
[77] It is therefore a contravention of the petitioners’ right to privacy that their HIV test results were not only taken in contravention of Sections 13 and 17 of the HIV and Aids Prevention and Control Act, but also disclosed in disregard of Sections 18 and 22 of the Act. It is manifest therefore that the tests and examinations carried out on the petitioners by the respondents were done in violation of the petitioner’s constitutional right to privacy.
[78] Consequently, I am in total agreement with the position taken in M W K & another v Attorney General & 3 others (supra) in which it was held that:
“There was a connection between an individual’s right to privacy and the right to dignity. Privacy fostered human dignity insofar as it was premised on and protected an individual’s entitlement to a sphere of private intimacy and autonomy. The rights of equality and dignity were closely related, as were the rights of dignity and privacy.
…
Therefore, the police were also required to honour the obligation to respect, protect, promote and fulfil the rights in the bill of rights. That was crucial as the police were, in the daily execution of their duties, involved in instances that had the potential to affect people’s rights to dignity, equality and freedom–which were foundational to Kenya’s democracy. Kenya’s people deserved a police service which was steeped in a culture of respect for human rights. That required them in all their dealings with society whilst executing their constitutional duties to be guided by respect for human rights and strict observance of the rights to human dignity, equality and freedom.”
B. On whether the petitioners are entitled to the reliefs sought:
[79] Article 23(1) of the Constitution gives the Court the jurisdiction, in accordance with Article 165, to hear and determine petitions for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Accordingly, Sub-Article (3) is explicit that:
In any proceedings brought under Article 22, a court may grant appropriate relief, including—
- a declaration of rights;
- an injunction;
- a conservatory order;
- a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;
- an order for compensation; and
- an order of judicial review.
[80] It is now settled that what amounts to appropriate relief depends on the nature and circumstances of the case. Hence, in Law Society of Kenya v Attorney General & another; Mohamed Abdulahi Warsame & another (Interested Parties) [2019] eKLR, Hon. Chacha, J. held that an appropriate relief should be an effective remedy for purposes of enforcing the Constitution, human rights and the rule of law. He relied on Fose v Minister of Safety and Security [1997] (3) SA 786(CC)1997(7) BCLR 851 wherein it was held that:
“[19] 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.”
[81] Similarly, in Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17, it was held that:
“[45] The determination of appropriate relief, therefore, calls for the balancing of the various interests that might be affected by the remedy. The balancing process must at least be guided by the objective, first to address the wrong occasioned by the infringement of the constitutional right; second, to deter future violations; third to make an order that can be complied with; and fourth, of fairness to all those who might be affected by the relief. Invariably, the nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in the particular case. Therefore, in determining appropriate relief, ''we must carefully analyse the nature of the constitutional infringement, and strike effectively at its source''.
[82] Having found that the petitioners’ right to privacy under Article 31 was violated, it is plain then that the declaratory orders are merited. As to whether the petitioners are entitled to compensation by way of damages, it is to be appreciated that from a constitutional standpoint, an award of damages is not intended to serve a punitive end; but for vindication of a right. Thus, in Dendy v University of Witwatersrand, Johannesburg & Others [2006] 1 LRC 291, the Constitutional Court of South Africa held that:
“…an award of damages was a secondary remedy to be made in only the most appropriate cases…The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringed and to deter their future infringement. The test was not what would alleviate the hurt which the plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.”
[83] While discussing the propriety of an award of damages within the context of constitutional petitions, the Court of Appeal, in the case of Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR) (17 December 2021) (Judgment), stated: -
“16. …that an award of general damages in constitutional petitions is discretionary and will depend on the circumstances of each case, and can indeed be granted as compensation for proven loss.
[84] Similarly, in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal held:
“…It seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. (Emphasis supplied) The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration...”
[85] The petitioners proposed an award of Kshs. 2,000,000/= as general damages. They relied on Ngugi v County Government of Nakuru & another (Petition E2 of 2021 [2023] KEHC 22624 (KLR) (25 September 2023) (Judgment) in support of their proposal. I am convinced that the proposal is reasonable in the circumstances.
[86] As to costs, there can be no doubt that the petitioners are entitled to the costs of the Petition. It is now settled that costs follow the event and are at the discretion of the court. The Supreme Court, in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, SC Petition No 4 of 2012; [2014] eKLR, pointed out that:
“[14] So the basic rule on attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in prosecuting or defending the suit. In Justice Kuloba’s words [Judicial Hints on Civil Procedure, at p.94]:
“[T]he object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure…Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting an action.”
[87] In the result, the Petition succeeds in part and orders are hereby granted as follows:
[a] A declaration be and is hereby issued that the action of the 2nd and 3rd respondents of carrying out intrusive examination upon the petitioners amounted to a violation of the petitioners’ rights under Article 31 and 49 of the Constitution.
[b] A declaration be and is hereby made that the action of the 2nd respondent in causing the petitioner to undergo an HIV and in publishing the results thereof to third parties amounted to a violation of the petitioners’ rights under Articles 31 and 49 of the Constitution.
[c] An award in the sum of Kshs. 2,000,000/= be and is hereby made to each of the petitioners for the violation of their right to privacy.
[d] Cost of the consolidated Petitions are hereby awarded to the Petitioners.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 24TH DAY OF OCTOBER 2024