REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI CORRUPTION AND ECONOMIC CRIMES DIVISION
ACEC PETITION NO. 30 of 2019
IN THE MATTER OF ARTICLE 22(1), 23 &24 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 3(1), 10,19,20,21,27(1) AND (2), 28,29,31,35(2), 38,47(1), 49( F,G,H) AND 50(1),(2), (a) & (4) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT ANTI CORRUPTION CRIMINAL CASE NO. 8 OF 2019 REPUBLIC VS DR. EVANS ODHIAMBO KIDERO & OTHERS
BETWEEN
EVANS KIDERO….…………………………………………...PETITIONER
VERSUS
ETHICS AND ANTI- CORRUPTION COMMISSIONS. 1st RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS…………. 2nd RESPONDENT
CHIEF MAGISTRATE’S COURT MILIMANI ANTI-CORRUPTION COURT ……………………………………………………3rd RESPONDENT
THE ATTORNEY GENERAL…………………………. 4th RESPONDENT
WACHIRA, MBURU, MWANGI &
COMPANY ADVOCATES………………………. 1st INTERESTED PARTY
GEORGE WAINAINA NDUNGU……………. 2nd INTERESTED PARTY
JOHN NDIRANGU KARIUKI………………….3rd INTERESTED PARTY
PAUL MUTUNGA KARIUKI……………………4th INTERESTED PARTY
MANASSEH KARANJA KEPHA…………..……5th INTERESTED PARTY
PHILOMENA KAVINYA NZUKI…………..….6th INTERESTED PARTY
NG’ANG’A MUNGAI NG’ANGA …………..…..7th INTERESTED PARTY
CHARITY MURINGO NDIRITU………………8th INTERESTED PARTY
PETERSON ANDREW NJIRU……………..….9th INTERESTED PARTY
EKAYA ALUMASI GHNZOUR……………….10th INTERESTED PARTY
JAMES MIMI MBUGUA……………………….11th INTERESTED PARTY
ELIZABETH WANJIRU NDERITU…………..12th INTERESTED PARTY
ALICE NJERI MUNDIA………………….……13th INTERESTED PARTY
HANNAH MUTHONI KARIUKI………….…14th INTERESTED PARTY
JOHN NGARI WAINAINA…………………….15th INTERESTED PARTY
THE CUPS LIMITED………………………….16th INTERESTED PARTY
JUDGMENT
INTRODUCTION
1. Vide Petition dated 10th September 2019 filed on 16th September 2019, the Petitioner seeks the following orders
a) Spent
b) Spent
c) A declaration be and is hereby issued that the 1st and 2nd Respondents have threatened, contravened and / or violated the Petitioner’s rights and fundamental freedoms guaranteed under Articles 27 (1) and (2), 28,29,31 (a,b,c) 35(2), 47(1), 49 (f,h), 50(1), 2(a) and 50 (4) of the Constitution of Kenya.
d) A declaration be and is hereby issued that the institution, maintenance and conduct of Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others is unconstitutional, discriminatory, malicious, oppressive, vexatious, an abuse of the process of the Court and therefore unlawful, null and void ab initio.
e) A declaration be and is hereby issued that the institution, maintenance and conduct of Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others in specific relation to the Petitioner is unconstitutional, discriminatory, malicious, oppressive, vexatious, an abuse of the process of the Court and therefore unlawful, null and void ab initio.
f) A declaration be and is hereby made that the arrest and detention of the Petitioner between 26th April 2019 and 30th April 2019 was capricious, arbitrary, an abuse of power, legal process, and discretion, unjustifiable and was otherwise unlawful, illegal and / or unconstitutional.
g) A declaration be and is hereby made that the arrest and detention of any person in police custody other than for a reason permitted by law and for any period than is reasonably necessary, or where it can be demonstrated that there was no reason to keep the person in custody is illegal and unconstitutional.
h) A declaration be and is hereby made that the publication and circulation of the press statement dated 26th April 2019 and 25th April 2019 by the 1st and 2nd Respondents was unprofessional, reckless, prejudicial, unlawful, and contravened the right of the Petitioner guaranteed under Article 50(2)(a) of the Constitution.
i) A declaration be and is hereby made that the 1st and 2nd Respondents have acted recklessly, carelessly, negligently, unprofessionally and unnecessarily threatened, violated and infringed upon the Petitioner’s rights and fundamental freedoms under Articles 28, 29 (a,c,d, f) and 50(2)(a).
j) A declaration be and is hereby made that any public officer who abuses his /her power, acts unreasonably, recklessly, carelessly, unprofessionally, without due regard to the bill of rights whilst executing or carrying out an official function or duty is liable to be surcharged personally for any damages arising therefrom and / or subject to sanctions.
k) An declaration be and is hereby made that the order and/ or warrant dated 19th January 2016 made and / or obtained in Makadara Chief Magistrate’s Court Misc. Criminal Application No. 38 of 2016 to investigate the Petitioner’s bank account No. 068000004475 in Family Bank was made and obtained unlawfully and/ or illegally.
l) An order be and is hereby made quashing the order/ warrant dated 19th January 2016 made and / or obtained in Makadara Chief Magistrate’s Court Misc. Criminal Application No. 38 of 2016 in relation to the Petitioner’s Bank Account No. 068000004475 in Family Bank.
m) An order of Certiorari be and is hereby issued to remove into the High Court and quash the decision(s) of the 1st and 2nd Respondent made on or about 25th and/ or 26th April 2019 to bring charge and institute criminal proceedings against the Petitioner in Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others.
n) An order of Certiorari be and is hereby made to remove into the High Court and quash the charges contained in the Charge Sheet dated 29/4/2019 Police Case No. 148/5/2019 brought against the Petitioner in the said charge sheet in Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others.
o) An order of prohibition be and is hereby issued against all the Respondents jointly and severally prohibiting any of them from carrying on and / or proceeding with Anti-Corruption Case No. 8 of 2019- Republic v Dr. Evans Odhiambo Kidero & 15 Others in relation to the Petitioner.
p) An order of Prohibition be and is hereby issued against all the Respondents jointly and severally prohibiting any of them from reopening or purporting to reopen, bringing, instigating, instituting, carrying out and / or proceeding with any criminal proceedings or charges in connection with the payment of legal fees to the firm of Wachira Mburu& Co. Advocates on account of Milimani Commercial HCCC No.875 of 2010.
q) An order of prohibition be and is hereby issued directed to all the Respondents jointly and severally prohibiting them from reopening or purporting to reopen, bringing, instigating, instituting, carrying out and or proceeding with any criminal charges in connection with the payment of legal fees to the firm of Wachira Mburu& Co. Advocates on account of Milimani Commercial HCCC No.875 of 2010 in relation to the Petitioner.
r) The 1st and 2nd Respondents be and are hereby ordered jointly or severally to pay the Petitioner damages in the sum of Kenya Shillings Two Hundred Million (200,000,000.00) for the violation of the Petitioner’s rights and fundamental freedoms; and for the Petitioner’s unlawful arrest, detention, false imprisonment, intimidation, hindrance, malicious prosecution, pain, anguish, suffering, torture, cruel inhuman and degrading treatment and harassment.
s) The costs of this petition be provided for
t) Any other and / or further orders the honourable Court deems just and fit to grant and/ or may commend themselves in the course of hearing the Petition.
2. The Petitioner challenges his arraignment on the following grounds.
a) Lack of factual foundation, absurdity, unreasonableness, and irrationality
The Petitioner sets out in paragraphs 12 to 22 of the Petition what he perceives to be the origin of the charges he is faced with and faults the prosecution on the following grounds;
i. that he was not at the Nairobi City council when the facts that underlie the charges arose.
ii. That the debt in any event was valid and due. The Petitioner contends that the subject money was legal fees payable to the firm of Wachira Mburu and Co. Advocates for services rendered in respect of HCCC No. 875 of 2010. The Petitioner contends that to the extent that the Charges stem from the payment of the sum of Kshs 58m to the firm of Advocates, the criminal case and the proceedings are an abuse of the Court process and therefore oppressive.
3. It is the Petitioners position that the criminal justice system is being manipulated by the 1st and 2nd Respondents for ulterior motives and to achieve extraneous purposes.
b) illegal exercise of discretion abuse of power, abuse of legal process, malice, oppressiveness improper motive and / or extraneous purpose.
The Petitioner takes issue with the mode of his arrest- he was taken from his house at 6am on the 26th April 2019 and held at Integrity Centre until 4pm when he was moved to Kilimani Police station and presented to Court on Monday 29th April 2019.
4. The Petitioner maintains that the 1st Respondent deliberately and maliciously delayed his presentation before Court and by so doing abused their power.
5. He also takes issue with statements released by the 1st and 2nd Respondent which in his view were 'part of well-choreographed plan, maliciously calculated and deliberately intended to lay a basis for embarrassing, humiliating and stripping away the Petitioner's human dignity and portraying the Petitioner as a villain a disgraced degenerate and prejudging the Petitioner's guilt in the eyes of the public’.
6. c) Lack of impartiality, inconsistency, capriciousness and discrimination
The Petitioner alleges that he has been discriminated against. He was not invited to give information relating to the investigation. This is contrary to fair administrative action and natural justice. He has not been given the opportunity to present exculpatory evidence.
7. Specifically, he takes issue with the fact that Aduma Joshua Awour who gave instructions in respect of HCCC No. 875 of 2010 was only charged after persistent demands by his defence team.
8. The Petitioner argues that the failure in the first instance to Charge Aduma Joshua Awour demonstrates that the investigations were not impartial and were infact discriminatory.
9. The Petitioner contends further that the malice and capriciousness of the Respondents is demonstrated by their conduct during the pre-Trial conference when they withheld documents which included original charge sheet.
10. d) Contravention of statute
The Petitioner is aggrieved that the 1st Respondent obtained access to his bank accounts without following due process and specifically that the Petitioner was not informed, notified or requested to furnish, within a reasonable time any information required by the 1st Respondent.
11. In so acting the 1st Respondent acted contrary to the provisions of Sections 26,27,28,29 and 30 of the ACECA
12. e) Violation of the Petitioner's rights and fundamental freedoms.
It is the Petitioners contention that the actions cited above occasioned a violation of the following rights;
i) National values and principles of governance under Articles 10 (I ) and (2) of the Constitution.
the Petitioner faults the 1st and 2nd Respondent for acting reckless regard and in violation of their duty to respect always uphold and defend the constitution as stipulated under Article 3 of the constitution.
13. It is further argued that the 1st and 2nd Respondents have failed to uphold the rule of law, good governance integrity , transparency and accountability and have not acted in the public interest
14. ii) Equality and freedom from discrimination ; Contravention of Statute
By failing to apply the provisions of Sections 26,27 and 28 of ACECA and other safeguards which are designed to protect persons under investigation and especially when they may have exculpatory evidence, the Respondents denied and prevented the Petitioner's enjoyment of any benefit he could have and would have received.
15. The Petitioner did not receive similar accommodations that were extended to other persons and suspects.
16. iii) Right to human dignity under Article 28 of the Constitution
The actions of the Respondents have undermined human dignity of the Petitioner and have humiliated and embarrassed him. The detention of the Petitioner at the Police station was calculated to undermine his reputation before the public and to take away his right to be presumed innocent until proven guilty.
17. The actions of the 1st and 2nd Respondents were deliberate, malicious and media and unlawfully courted media publicity. Further they published and publicized false and misleading statements geared at tarnishing the name and political reputation of the Petitioner.
18. The Petitioner reiterates the mode of his arrest, the differential treatment of the other suspects is a demonstration of actions of the Respondents intend to humiliate him.
19. He alleges further that the state machinery has been deployed to subjugate him.
20. The holding of the Petitioner at the Police station for 3 days without reason was unreasonable and unjustifiable.
21. iv) Freedom and security of the person under Article 29 of the constitution.
The Petitioner contends that the 1st and 2nd Respondents have subjected him to violence by misusing and abusing state power, resources and machinery and he is unable to defend himself. He cites his detention days for 3 days as a deliberate means to overbear and subjugate him and expose him to psychological torture.
22. The Petitioner states that all this is intended to force his hand politically and that this is tantamount to inhuman and degrading treatment.
23. v) Privacy under Article 31 (a,b, c)
The facts leading to violation are set out in paragraph 65-73 of the Petition. The Petitioner states the 1st Respondent didn’t have probable cause to search the Petitioner's bank accounts and acted outside the law.
24. vi) Access to information under Article 35(2) of the Constitution
The Petitioner contends that the Respondents having published false information about him, he has the right to have that information deleted or corrected.
25. vii) Political Rights under Article 38 (1)( a,b,c) and 3 ( c)
The Petitioner contends that the goal of the malicious prosecution is to undermine his political rights and electability and to force his hand on who he deals with, supports or associates with politically.
26. viii) Right to Fair Administrative Action under Article 47(1)
The Petitioner takes issue with the manner the investigations were initiated, and recommendations made for prosecution. The Petitioner contends that the 1st Respondent has deliberately and with malicious intent misrepresented the exculpatory evidence to justify the prosecution of the Petitioner.
27. The 2nd Respondent's turn around in deciding charge Aduma Joshua Owour months after the Petitioner had raised the issue and subsequent application to seek to consolidate the matters has compromised the Petitioner's right to a process that is expeditious and efficient.
28. ix) Rights of arrested persons under Article 49 (1) (f,h)
The Petitioner reiterates the facts and grounds in paragraphs 50 to 56 of the Petition and maintains that there weren't exceptional circumstances to justify holding him for 3 days without offering him bail or bond.
29. x) Right to a fair hearing guaranteed under Article 50 (1),2(a) and (4) 9 the constitution
The Petitioner is aggrieved that his right to a fair Trial was compromised by the misleading statements inferring that he was guilty. He further argues that the extra judicial punishment and treatment he was subjected leads to the inference that he is guilty.
30. The Petitioner reiterates that the manner in which evidence was unlawfully obtained from his bank account was a violation of this right.
31. The Petition is supported by 65 paragraph Affidavit sworn by the Petitioner on 12th September 2019 and filed in Court on 16th Sept 2019.
32. The Petition is opposed by both the 1st and 2nd Respondents.
33. The 1st Respondent relies on the Affidavit of Catherine Ngari an investigator with the Ethics and Anti-Corruption Commission sworn on the 19th February 2020. She is categorical that the 1st Respondent acted in exercise of its mandate and that there is no evidence of malice, illegality, irrationality, procedural impropriety, or unreasonableness on the part of the 1st Respondent.
34. The investigations of the 1st Respondent were sparked by a report in the Nairobi Star on 2nd February 2017 exposing a scam in the them City Council of Nairobi ( CCN) and a firm of Advocates.
35. The details and findings of the investigation are set out on paragraph 8 of the Affidavit. In paragraph 9 of her affidavit she makes reference to the Forensic Audit report dated 31st January 2012 that recommended against the payment of the sums owing to the Firm of Advocates and demanding the refund of the Kshs 10 Million that had been paid earlier.
36. In paragraph 14 of the Affidavit, she depones that the investigations showed that on 7th January 2014, the sum of Kshs 58 Million was paid to the Firm of Advocates and on the same date payments were made out of the lawyers account to various accounts specified in paragraph 14 (i-vii).
37. Among the payments made was a payment of Kshs 15 million to The Cups Limited which is owned by George Wainaina Njogu and John Ngari Wainaina. Pursuant to warrants obtained on 19th January 2016 to investigate the accounts of the Petitioner, the Commission and found that Cups Limited had transferred Kshs 14,400,000.00 to the Petitioners account on 8th January 2014.
38. George Wainaina Njogu was Chief of Staff at the Nairobi City County Government, and the Petitioner was the Governor at the material time.
39. Vide Paragraph 17, the Ist Respondent avers that contrary to the Petitioners assertion that the payment of Kshs 14.4 Million was in respect of a car he had sold to George Wainaina, as at 23rd February 2017 when a search was undertaken at the Registrar of Motor Vehicles, the vehicle was still registered in the name of the Petitioner.
40. It was averred that this in addition to the fact that the Sale Agreement was executed almost 6 days after the money was transferred. For these reasons doubted the veracity of the Petitioner’s claim to have sold the motor vehicle.
41. The 1st Respondent avers that it was based on these facts that it recommended that the Petitioner be charged. The 2nd Respondent agreed with these recommendations and proceeded to charge the Petitioner alongside others in Milimani magistrate’s Court in ACC No. 8 of 2019; Republic Vs Dr. Evans Odhiambo Kidero & 15Others on 29th April 2019.
42. Accordingly, the 1st Respondent denies that the Petitioner’s rights have been violated and submits that the issues raised by the Petitioner are best raised before the Trial Court as part of his defence.
43. The 2nd Respondent in opposing the Petition relies on the Affidavit of Hellen Mutellah sworn on 30th June 2020.
44. Parties agreed to dispose of the Appeal by way of written submissions. The Petitioner filed submissions dated 13th November 2020. The Ist Respondents submissions are dated 4th December 2020. The 2nd Respondent’s submissions are dated 7th December 2020. The Parties also appeared virtually before Court on 27th January 2023 and highlighted their submissions.
SUBMISSIONS
Petitioner’s Submissions
45. The Petitioner contends that absent a factual foundation for the charges the prosecution must fail. Further that the prosecution of the Petitioner in the absence of a factual foundation is evidence of absurdity, unreasonableness and irrationality by the 1st and 2nd Respondent.
46. The Petitioner submits that the charges are hinged on the payment of Kshs 58 million to the firm of Wachira Mburu and Company Advocates and on the erroneous conclusion by the Forensic Audit Report that recommended that the payment ought not be made.
47. It is further submitted that absent evidence of collusion between Wachira Mburu and Company Advocates, Kyavee Holdings and or Roy Olum the charges cannot possibly lie.
48. Further it is submitted that the facts that are the basis of the charges which the Petitioner faces happened prior to the Petitioner’s time at the County Government of Nairobi. The Petitioner only acted to ensure the payment of a debt that was due and payable.
49. The Petitioner invites the Court to scrutinise the evidence upon which the 1st and 2nd Respondent made the decision to charge and relies on the decision of Njuguna S. Ndungu Vs Ethics &Anti Corruption Commission (EACC) & 3 Others [2018] eKLR in which Githinji JA stated
“[24]….In my respectful view, the High Court erred in law by failing to scrutinise the charges, the relevant documents including the decisions of the Evaluation Committee, tender Committee, Review Board and the High Court proceedings and reach a conclusive and objective decision on whether or not the charges had any legal or factual foundation and also a realistic prospect of conviction.”
50. The Petitioner further cites the decision of the Court of Appeal in Diamond Hasham Lalji & Anor Vs Attorney General and 4 others [2018] eKLR in which the Court set out the responsibility of the Court as
“[45]…At this stage, the Courts should not hold a fully-fledged inquiry to find if evidence would end in conviction or acquittal. That is the function of the Trial Court. However, a proper scrutiny of facts and circumstances of the case are absolutely imperative.”
51. The Petitioner invites the Court to be guided by the decision of Lenaola J ( as he then was ) in Justus Mwenda Kathenge Vs Director of Public Prosecution & 2 Others [ 2014] eKLR and invoke Article 165(3)(d)(ii) and quash the proceedings in the Trial Court for being inconsistent or in contravention of the Constitution.
52. The Petitioner also calls on the Court to be guided by the decisions in Richard Malebe Vs Director of Public Prosecutions & 2 Others; R Vs The Makadara Chief Magistrate & 2 Others Ex Parte Wilberforce Nyamboga Mariaria [2017] eKLR and Tom Odhiambo Ojienda SC Vs Director of public Prosecutions and 3 Others [2020] eKLR , in which the Court faulted the DPP for preferring charges where there was lack of evidential basis and ignoring exculpatory evidence presented to the investigator before the proceedings are instituted.
53. The Second ground that the Petitioner raises is that the prosecution amounts to illegal exercise of discretion, abuse of power, abuse of legal process, malice, oppressiveness, improper motive and/ or extraneous purpose.
54. The basis for this contention is the conduct of the 1st and 2nd Respondent soon after the release of the Petitioner in issuing highly publicised media statements. It is contended that the 1st and 2nd Respondent actions are evidence of ulterior motive on their part. Reference is made to the decisions of R V Somerset County Council ex parte Fewings and Others [1995] 1 All ER 513 at 524 on the parameters within which public power must be exercised and the duty to the public who donate that power.
55. The Petitioner invites the Court to consider the European Court of Human Rights 1995 Decision in CASE OF ALLENET DE RIBEMONT v. FRANCE Application No. 15175/89) where, on almost identical facts the Regional Court found that the Applicants right to presumption of innocence had been violated as the statement by the senior government officials ‘encouraged the public to believe him guilty and secondly, prejudged the assessment of the facts by the competent judicial authority.’
56. Having faulted the media statements by the Ist and 2nd Respondents, the Petitioner urges that the same can only have been informed by the ulterior motive of parading the Petitioner as a ‘big fish’ or catch in their score cards. It also betrayed that the 1st and 2nd Respondents were ready to go to and had infact gone to any length to charge and prosecute ‘a big fish’ and justify to the public ‘the war on corruption.’
57. The Petitioner refers this Court to the decision in Bitange Ndemo Vs Director of Public Prosecution & 4 Others [2016] eKLR in which the Court held that ‘if it is demonstrated that the predominant purpose of the prosecution is to further that ulterior motive, then the High Court will intervene.’
58. On the issue of excessive use of force and prolonged and unjustified detention of the Petitioner, reference is made to Peter Macharia Ruchachu Vs Director of Public Prosecution & Anor [2014] eKLR where the Court held the manner of arrest, use of handcuffs where a person submits to the arrest or the custody of the arresting officer or officers, offended Section 21 of the Criminal procedure.
59. Further the Petitioner relies on the Courts decision in Tom Odhiambo Ojienda SC v Director of Public Prosecutions & 3 others [2020] eKLR wherein the Court in citing Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR frowned at the practice of arresting suspects on Friday to hold them over the weekend.
60. On the subject of illegally obtained evidence the Petitioner relies on the decision in the case of Philomena Mbete Mwilu v Director of Public Prosecution & 3 Others ; Stanley Muluvi Kiima ( interested party); International Commission of Jurists Kenya Chapter ( Amicus Curiae) [2019] eKLR and calls for the prosecution case to be halted.
61. The Petitioner scaffolds this position and places reliance on the decisions in Tom Odhiambo Ojienda Supra; Manfred Walter Schmitt & Anor v Republic & Anor [2013] eKLR and South African Supreme Court decision in Goqwana v Minister of Safety NO & Others ( 20668/2014) [2015] ZASCA; [2016] 1All SA 629 ( SCA) ( 30 November 2015) in which the Courts have held that ‘A search warrant embodies awesome powers as well as formidable consequences. It must be issued with care, after careful scrutiny by a magistrate or justice, and not reflexively upon a mere checklist approach’.
62. On whether the Petitioner is entitled to orders of Prohibition, it is the Petitioner’s submission that they have laid the basis for the Court to grant the order. It is their submission that the proceedings in the Trial Court are an abuse of Court process, are oppressive, have been commenced in disregard of the rules of natural justice. As precedent they rely on the cases of Agnes Ngenesi Kinyua Supra; Joram Mwenda Guantai vs The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] and Kuria & Others Vs Attorney General [200] 2 KLR 69. Which decisions have consistently found;
“…A prosecution that is contrary to public policy ( or interest) will not be allowed…A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so.”
63. Finally the Petitioner submits that he is entitled to damages of Kshs 200,000,000.00 for the violation of his rights and fundamental freedoms on account of his arrest, detention, false imprisonment, intimidation, hindrance, malicious prosecution, pain, anguish , suffering, torture, cruel inhuman degrading treatment and harassment. In setting this figure the Petitioner relies on the case of Miguna Miguna Vs Fred Matiangi Cabinet Secretary, Ministry of Interior and Coordination of National Government and 6 Others; Kenya National Commission on Human Rights ( Interested Party( [2018] eKLR.
64. It is argued that this figure is necessary to act as a deterrent and to send a message that there can be no right without a remedy.
65. The Petitioner also submits that the damages should be paid personally by the officers who occasioned the violation.
1st Respondent Submissions
66. The 1st Petitioner identified the following as the issues for determination.
a) Whether or not the decision to charge the Petitioner is malicious, oppressive, contrary to statute and public policy, an abuse of Court process and is for an extraneous and / or illegal purpose or motive unconnected with the vindication of a crime committed.
b) Whether there was a violation, breach or abrogation of the Petitioner’s rights and freedoms under Articles 27(1) & (2), 28,29,31,35(2), 38,47 (f,g,h) and 50(1),(2) ( a) & 8 of the Constitution in the Course of the investigation
c) Whether the Petition meets the threshold of a constitutional petition.
d) Whether tie Court should interfere with the exercise of the mandate of the 1st and 2nd Respondents and halt the prosecution of the Petitioner following investigations by the 1st Respondents.
e) Whether Petitioner is entitled to general compensation.
67. On Issue (a), it is submitted that the 1st Respondent has the legal mandate to investigate corruption and sets out the legal instruments which include the Constitution, the ACECA Act, the EACC Act, the Leadership and Integrity Act and the Bribery Act.
68. The 1st Respondent is opposed to an inquiry that would result in this Court transforming itself into a Trial Court and must also avoid usurping the constitutional and statutory mandate of the Commission to investigate well founded allegations of corruption and economic crimes. On this argument the 1st Respondent relies on the decision in Ronald Leposo Musengi v Director of Public Prosecutions and 3 Others [2015]
69. Since the contesting accounts on the source and purpose of the funds deposited in the Petitioner’s account can only be resolved by adducing evidence then as decided in the case of R Vs Director of Public Prosecutions and Anor Exparte Patrick Ogola Onyango and 8 Others (2016) eKLR the same should be left to the Trial Court. The 1st Respondent also relies on the case of Eric Kibiwott Tarus Vs Director of Public Prosecutions and 7V Others (2014) eKLR.
70. On whether warrants obtained by the 1st Respondent offended the provisions of Sections 26,27,28,29 and 30 of the ACECA and violated his rights under Article 31,40,47 and 50 of the Constitution, the 1st Respondent contends that the said rights are subject to the constitutional limits under Article 24 of the Constitution.
71. The 1st Respondent relies on the authorities of Mape Building & General Engineering Vs Attorney General & 3 Others[2016] eKLR; Ombati t/a Nchogu, Omwanza and Nyasimi Advocates and Director of Criminal Investigations Department, Emmanuel Kanyungu & 3 others [2017] eKLR and Court of Appeal decision in Okiya Omtatah Okoiti & Others Vs Hon. Attorney General & Others. Petition No. 109 of 2016 (consolidated with ACEC Petition No. 8 of 2017) and the Supreme Court Civil Application No. 21 of 2019 EACC Vs Prof Tom Ojienda & Others in which the Court granted orders of stay where the issue of notice under the ACECA Act and application under Section 118 of the Criminal Procedure Code and Section 180 of the Evidence Act were in issue.
72. On issue (b) the 1st Respondent denies that the Petitioner’s rights were violated. It is therefore denied that the actions of the Respondents contravened in any way Article 10 of the Constitution on National Values and principles of governance. To hold otherwise would be to interpret the Constitution in a manner that offers protection to persons suspected of corruption and/ or economic crimes.
73. The 1st Respondent denies that the Petitioner’s rights under Article 27(1) & (2) of the Constitution were violated. Specifically, it is claimed that the Petitioner has not established as required how this right was violated. It is argued that the Commission acted in exercise of its statutory mandate. Differential treatment is not discrimination. The Court is invited to consider the decision on Republic Vs Director of Public prosecution & others Exparte Meridian Medical Centre Ltd & 7 others [2015] eKLR and Nairobi High Court Petition 298 of 2008; James Nyasora Nyarangi & 3 Others Vs the Attorney General
74. Right to Fair Hearing, the 1st Respondent states that the Petitioner has not been denied an opportunity to have redress before the Courts. And further that the press statement and investigations into his account did not violate this right. It is submitted that the criminal justice system has sufficient safeguards to prevent violation of the Petitioner’s rights.
75. The claim that his rights under Article 47(1), Fair Administrative Action were violated on account of the impugned search warrants is rebutted.
76. The alleged infringement of Right to Privacy as articulated in Article 31 ( a, b, c) is controverted on the basis that in accessing the accounts of the Respondent, the 1st Respondent was executing a lawful order. Further that Article 24(1) provides for limitations to rights and in this instance the limitation was deemed necessary to safeguard the public interest in combatting corruption and economic crime.
77. In response to the charge that the Respondent’s violated his right to information under Article 35(2) of the Constitution, the 1st Respondent asserts that by virtue of Section 29(1) of the ACECA they are obligated to share with the public ‘ important information’.
78. In relation to Article 38(1) ( a, b and c) and (3)(c), the 1st Respondent submits that the Petitioner has not demonstrated how his political rights have been breached.
79. Regarding rights of Arrested persons, the 1st Respondent states that the Petitioner having been arrested on a Friday, the next available date for his arraignment in Court was Monday and he was taken to Court on the 29th April 2019.
80. Regarding the alleged violation of his Right to Human Dignity and freedom and security of the person, it is contended that the Petitioner did not prove that during his detention he was treated in a manner that violated his right to human dignity.
81. With regard to issue ( c ), whether the Petition meets the threshold for a constitutional Petition. The 1st Respondent relies on Anarita Karimi Njeru Vs Republic (1979) KLR 54 for the proposition that the Petitioner is required to set out with due particularity the nature of his claim by identifying the right violated and how it is violated. The principles in Anarita Case were emphasized in Mumo Matemu V Trusted Society of Human Rights Alliance and 5 Others Civil Appeal No. 290 OF 2012 (2013) eKLR.
82. It is contended that the Petitioner having failed to link the investigation process, his arrest by the Commission, arraignment and prosecution by the Director of Public Prosecution to a breach of any Constitution, the Petition is for dismissal.
83. On issue (d) whether the Court should interfere with the exercise of the mandate of the Commission and the 2nd Respondent, the 1st Respondent is categorical that the Trial Court should be allowed to deal with the matter. Reference is made to the following decisions Kipoki Oreu Tasur vs Inspector General of Police &5others (2014) eKLR; Thuita Mwangi &Anor vs The Ethics and Anti-Corruption Commission & 3 others Petition No. 153 &369 of 2013.
84. It is further argued that since the Petitioner is seeking Judicial Review orders, these can only be obtained on the basis of an error of law where the mistake goes to the jurisdiction and decision making process of the tribunal, public body or authority. This was the import of the Court’s decision in Republic vs The Retirement Benefits Appeal tribunal Ex Parte Augustine Juma & 8 Others [2013] eKLR; Meixner & Anor vs Attorney General [2005] 2 KLR 189; Total Kenya limited & 9 Others V Director of Criminal investigation & 3 Others [2013] eKLR; Salome Munubi V Director of Public Prosecution & 5 others; National Land Commission & 13 others ( Interested Parties) [ 2019] eKLR
85. On issue (e), whether the Petitioner is entitled to general compensation and costs, the 1st Respondent reiterates that it acted properly and lawfully within its mandate and cannot therefore be condemned to pay damages.
86. In concluding the 1st Respondent points out that allowing the Petition would be tantamount to providing a blanket bar to investigations and prosecution where a person is suspected to be involved in corrupt conduct. Finally, the 1st Respondent cites the Court in the case of Hussein Khalid &16 Others v Attorney General and 2 others [2019] reiterating that the constitutional safeguards that exist extend to the right to a fair Trial and that therefore the Petitioner should subject himself to the jurisdiction of the Trial Court and argue his defence there.
2nd Respondents Submissions
87. The 2nd Respondent submits that the matters raised by the Petitioner are matters for Trial Court to assess and test.
88. The 2nd Respondent identifies 2 issues for determination.
a) Whether or not there was a basis for the Charges against the Applicant/ Petitioner.
b) Whether the 2nd respondent infringed and / or threatened the Applicant/ Petitioners fundamental rights and freedoms to warrant the orders sought.
89. On the 1st Issue, the 2nd Respondent in response to the Petitioners claim that the there is no factual basis or foundation for the criminal charges and that the same are motivated by a predominant purpose of achieving an illegal and ulterior motive of persecuting the petitioner submits that Article 157 (6) confers on the DPP the state powers of prosecution.
90. In exercise of its independent mandate the DPP preferred charges against the Petitioner/ Applicant after an independent review of the recommendations by the 1st Respondent as set out in paragraph 17 of the Submissions.
91. In response to the assertion by the Petitioner that the charge related to conspiracy must fail, the 2nd Respondent relies on the decision in R Vs Meyrick & Ribuffi [1930] 21 CR APP R 94 in which the court held inter alia
…what has to be ascertained is always the same matter: is it true to say, in the word already quoted, that the acts of the accused were done in pursuance of a common criminal purpose held in common between them..
92. It is the 2nd Respondent’s assertion that the Court be guided by the decision in Meixener & Anor Vs Attorney General [200] 2 KLR 189; Republic Vs Director of public Prosecutions & 2 Others Ex- Parte Stephen Mwangi Macharia JR Misc Application 20 of 2014 [2014] eKLR and R Vs Director of Public Prosecutions & Anor; Mukesh Patel & Anor Ex Parte Warsama Ismail [2019] eKLR
93. On the 2nd issue regarding the violation of the petitioners rights the 2nd Respondent submits that the Petitioner has made general allegations relating to the alleged violations of his rights and fundamental freedoms which is against the laid down requirement of specificity as provided for under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Reliance is placed on the decision of the Court in Japheth Ododa Origa V Vice Chancellor University of Nairobi & 2 Others.
94. The 2nd Respondent further submits that as relates to the right to human dignity and fair administration action these are not absolute rights and that the actions of the Respondent fall within the parameters of Article 24(1) of the Constitution. The 2nd Respondent relies on the decision of the Court in Jack Mukhongo Munialo & 12 0thers v Attorney General & 2 Others Nairobi hIGH court Petition No. 182 of 2017 [2017] eKLR
95. In response to the prayer for grant of prohibition orders, the 2nd Respondent relies on the decision in Douglas Maina Mwangi Vs Kenya Revenue Authority and Anor, High Court Petition No. 528 of 2013, where it was held that the jurisdiction of the court to interfere with the exercise of the DPP’s discretion in making prosecutorial decisions should be exercised sparingly and in the clearest of cases and where it has been unfairly and improperly exercised.
96. The independence of the office of the DPP was also underscored in the decision of Republic Vs DPP Ex Parte Victory Welding Works and Anor. HC Misc Appl. No. 249 of 2012
97. It is submitted that having failed to demonstrate that the prosecution/ criminal proceedings are an abuse of the Court process and/ or an infringement of the Petitioners fundamental freedoms and rights, the Petition is an attempt to curtail the mandate of the criminal justice system actors. Reference is made to the decisions of Cape Holdings Ltd Vs Attorney General and Anor ( 2012) eKLR; John Swaka vs The DPP and 2 others [2013] eKLR; Republic vs The Chief Magistrate and 2 others Ex Parte Tusker Mattresses Ltd and 3 Others HC Misc. Application No. 179 of 2012; Kuria & 3 Others Vs Attorney General (2002) eKLR 69 and Attorney General Vs IG, DPP Ex Parte Thomas Nganga Munene 9 20140 eKLR; rEPUBLIC Vs Commissioner of Police and Anor; Ex Parte Michael Monari & Anor ( 2012) eKLR ; Republic V Attorney General & 4 Others Ex Parte Kenneth Kariuki Githii [2014] eKLR
98. In concluding the 2nd Respondent therefore contends that the Petitioner has not provided a basis for the grant of the orders sought.
ANALYSIS
99. On reviewing the pleadings of the parties, their submissions and authorities filed, the following issues are identified for determination.
a) Whether or not there was a factual basis for the Charges against the Petitioner.
b) Whether this is an appropriate case to interfere with the exercise of mandate by the 1st and 2nd Respondents and issue orders of certiorari and prohibition
c) Whether the 1st and 2nd respondent infringed and / or threatened the Applicant/ Petitioners fundamental rights and freedoms
d) If the answer to c) is in the affirmative, what are the appropriate remedies.
e) Who shall pay costs
Whether or not there was a factual basis for the Charges against the Applicant/ Petitioner.
100. In presenting this Petition the Petitioner invokes the mandate of the Court pursuant to Article 22, 23 and 165 of the Constitution of Kenya.
101. Article 22(1) provides, “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.
104. Article 23 provides, (1) “The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”.
105. Article 23(3) provides the remedies that the court may grant and in addition to judicial review orders they include 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 justice under article 24; and an order for compensation.
106. Article 165(3) provides, Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters.
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this
Constitution to consider the removal of a person from office, other than a tribunal
appointed under article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution
including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this
Constitution;
(ii) the question whether anything said to be done under the authority of this
Constitution or of any law is inconsistent with, or in contravention of, this
Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of
county governments and any matter relating to the constitutional relationship
between the levels of government; and
(iv) a question relating to conflict of laws under article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
102. In considering this Petition therefore the Court’s primary obligation is to guarantee that the constitutional rights and fundamental rights are safeguarded and further satisfy itself that the exercise of their respective mandates by the 1st and 2nd Respondents is consistent with the Constitution.
103. The Petitioner challenges the DPP’S decision to mount the prosecution on the basis that the prosecution lacks a foundational basis and invites the Court to undertake an inquiry to establish whether the DPP’s actions contravene Article 157 (11) which provides the boundaries within which the DPP ought to exercise his mandate.
104. The Respondent is opposed to the Court undertaking the inquiry and argues that these are issues for determination of the trial court.
105. It is now well settled that once an assertion is made that a prosecution lacks foundational basis the Court must satisfy itself the prosecution does not amount to an abuse of the court process as this will be contrary to the public interest. Guided by the decision of Onguto J IN Republic v Director of Public Prosecutions & another Ex parte Patrick Ogola Onyango & 8 others [2016] eKLR , I am obligated to make an inquiry to establish that the DPP actions are in consonance with Article 157 (11) of the Constitution, once I satisfy myself that the DPP has established reasonable suspicion the rest is left to the trial court.
106. According to the Petitioner, the basis of the charge is the payment of fee owed to the firm of Wachira Mburu & Co. Advocates on account legal services rendered in Milimani Commercial HCCC No.875 of 2010.
107. The Prosecution on the other hand asserts that basis is the payment of the sum of Kshs 58 million notwithstanding the advice of a forensic audit and the subsequent transfers from the lawyers account to various accounts, received by individuals within the County Government including the Petitioner who was the Governor. Thus, laying the basis of a charge of conspiracy with criminal intent.
108. With the tool kit at the disposal of this court I find that I am not sufficiently equipped to resolve the contestation between the Petitioner and the Respondents. I am guided by the decision of the Supreme Court in the Case of Praxidis Namoni Saisi & 6 Others Vs DPP & 2 Others Petition No. 39 of 2019 where the court stated as follows,
[92] It is our considered opinion that these are not issues concerning the propriety or otherwise of the decision by the DPP to charge them. These appear to be serious contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction.
109. In Hussein Khalid and 16 others v Attorney General & 2 others; Petition No. 21 of 2017; [2019] eKLR the Supreme Court held that it was not for the High Court as a Constitutional Court to go through the merits and demerits of the case as that is the duty of the trial Court.
110. The Petitioner has alleged that the charges are meant to stifle his political career or force his hand. He has not substantiated these claims. In the absence of evidence to support this claim, I am unable to find that the Prosecution is malicious and presented with ulterior motives.
111. The Petition therefore fails on the first issue. I find that the Prosecution has established a factual foundation to sustain the charges.
112. On the second issue, whether the Court should issue judicial review orders. As observed in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR, the prosecutorial discretion of DPP is not absolute. It is limited by Article 157(11) which specifies the mandatory considerations that underlie the exercise of discretion,
In exercising the powers conferred by this Article, the Director
of Public shall have regard to the public interest, the
interests of the administration of justice and the need
to prevent and avoid abuse of the legal process.
113. The Court went on to observe,
[34] It is also indisputable that the constitutional prosecutorial power of DPP is reviewable by the High Court as Article 165(2)(d)(ii) of the Constitution ordains. However, the doctrine of separation of powers should be respected and the courts should not unjustifiably interfere with the exercise of discretion by DPP unless it is exercised unlawfully by, inter alia, failing to exercise his/her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual.
114. In Republic v Director of Public Prosecutions & another; Mukesh Patel & another Ex parte Warsama Ismail [2019] eKLR, Mativo J as he then was stated as follows
40. The High Court's inherent powers to quash, stay or prohibit criminal proceedings are wide as they imply the exoneration of the accused even before the proceedings have been culminated by way of trial. Noting the amplitude of these powers and the consequences, which they carry, the Supreme Court of India[15] revisited the law on the issue and held that these powers should be exercised sparingly and should not carry an effect of frustrating the judicial process.
115. Having found that the Prosecution have demonstrated they have triable facts to present before the trial court, I hold that this is not an appropriate case where judicial review orders should be invoked.
116. On the 3rd Issue, whether the Petitioners rights were violated or infringed. The Petitioners alleges violation of his rights under Articles 27 (1) and (2), 28,29,31 (a,b,c) 35(2), 47(1), 49 (f,h), 50(1), 2(a) and 50 (4) of the Constitution of Kenya
117. It is now well settled that a person who seeks redress under the constitution must state his or her claim with precision and demonstrate which provisions of the Constitution have been violated or infringed and the manner of the alleged violations. This principle was established in the case of Anarita Karimi Njeru v Attorney General (1979) 154 where the court stated;
“We would however again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.”
118. The Petitioner alleges violation of his right to Equality and freedom from discrimination guaranteed under Article 27 of the Constitution. The basis of this claim is the actions of the 1st Respondent are said to be in contravention of Sections 26, 27 and 28 of Anti- Corruption and Economic Crimes Act, 2003 (ACECA) and the differential treatment afforded the co- accused by the Respondents.
119. The Petitioner takes issue that contrary to the provisions of ACECA, the 1st Respondent had access to his bank account without notice to him. This complaint is related to his claim that his right to Privacy under Article 31 ( a,b,c) and his right to Fair Administrative Action under Article 47 were violated.
120. The issue of whether warrants obtained via ex parte applications without notice constitute a violation of the subject’s rights or constitute a legitimate limitation of the right as provided for under Article 24 of the Constitution was addressed by the Supreme Court in the decision of Ethics and Anti-corruption Commission and Anor v Prof Tom Ojienda SC t/a Prof Tom Ojienda & Associates Advocates & 2 Others Petition No. 30 of 2019.
121. In that matter the Supreme Court held that the 1st Respondent is not required to give written notice prior to commencing an investigation in all situations and that the investigative powers of the 1st Appellant did not fall within administrative acts. The Court found that the Appellants right to Fair Administrative action under Article 47 were not violated. Likewise, I find that the Plaintiff’s claim of infringement of rights under Article 47 fails.
122. The Court in Okiya Omtatah Okoiti & Others Vs Hon. Attorney General & Others. Petition No. 109 of 2016 (consolidated with ACEC Petition No. 8 of 2017) had opportunity to pronounce on constitutionality of warrants obtained under the impugned sections of ACECA. The right to privacy guaranteed under Article 31 and balancing this with the public interest to ensure that the investigative authority has the ability to detect crime, and held
[118]….it is understandable why warrants or seizure orders are obtained ex parte when any matter is still at the investigation stage. The justification seems to fall within the provisions of Article 24 (1) of the Constitution.
123. For this reason, I find that the allegation of violation under Article 31 also fails.
124. The Petitioner also claims violation of his rights under Article 27 were infringed on account of differential treatment of the co accused, it is his contention that whereas he was subjected to an arrest the co accused were summoned to report at the 1st Respondents offices. I will deal with this aspect when addressing myself to the alleged violation of Article 49.
125. The Petitioner alleges his right to fair trial under Article 50 of the Constitution were infringed upon by the highly publicised media reports which in his mind were intended to portray him as being guilty. I have had occasion to consider the case of Allenet De Ribemont v France and note that this decision was arrived at after the determination of the criminal case in which the applicant was acquitted. In fact, the dissenting opinion took issue with the courts finding that the right to be presumed innocent until proven guilty may be infringed by other public authorities. The dissenting opinion was of the view that the extended interpretation cannot be guaranteed in a practical and effective way, especially if the remedy is sought as soon as the violation takes place. To illustrate the difficulty reference was made to a Maltese case in which a similar application had been made prior to the determination of the criminal case and at the conclusion of the criminal case the accused was convicted.
126. This issue was also canvassed in the Philomena Mwilu case ( supra). In that case the court observed that notwithstanding the extensive media coverage of the arrest of the Petitioner, eventually a criminal trial is conducted by qualified, competent and independent judicial officers who are not easily influenced by statements made to the press and that courts are able to rise above such publications and utterances.
127. The Court further held that in a criminal justice system such as in Kenya in which the trial is conducted by a judicial officer as opposed to trial by jury, pre-trial media publicity cannot influence the mind of the trial court which is manned by a competent and independent judicial officer.
128. I therefore hold that in the instant case the infringement of Article 50 rights has not been proved.
129. In relation to his arrest and detention the Petitioner alleged violation of his rights under Articles 28, 29 and 49. The circumstances surrounding the arrest and holding of the Petitioner for 3 days before presentation in court are not disputed. Both the 1st and 2nd Respondent explain it away by stating that he was presented to court at the earliest opportunity.
130. It is not contested that the Petitioner is a public figure and a high-ranking member of society, he has served in the past as CEO of Mumias Sugar and prior to the arrest as Governor of Nairobi County. It is also not contested that some of his co accused were summoned to the offices of the 1st Respondent. No explanation has been given as to why it was deemed necessary to conduct an arrest in the manner at 6am and then proceed to hold the Petitioner for 3 days without offering him bail or bond. The circumstances of this case are comparable to those in GBM Kariuki v Attorney General (2016) eKLR where Odunga J as he then was held,
“124. It is therefore my view that in effecting arrest, the same must be done in a manner that accords the suspect his right to dignity and unless there are reasons to believe that the arrest is likely to be resisted, to assemble a whole battalion in order to effect arrest of a Judge as opposed to a “most wanted criminal” or a terrorist, with the result that unnecessary publicity is thereby aroused may well be evidence of malice”
131. Article 49 provides for the right inter alia
(f) to be brought before a court as soon as reasonably possible, but not later than--
(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day; and
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
132. The Court has on previous occasion expressed its displeasure with the practice of arresting persons on Fridays and holding them in custody over the weekend see the case of Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR.
133. Article 20 of the Constitution is clear, the Bill of Rights is not a mere suggestion, it applies to all law and binds all state organs. On consideration of the manner of the arrest of the Petitioner and his subsequent detention for 3 days, I find that his rights under Articles 28 and 49 were violated/ infringed upon. The right to dignity and respect of a person extends even to arrested persons.
134. Having found that the Petitioner’s rights under Articles 28 and 49 were violated, I find further that he is therefore entitled to both a declaration that his arrest and detention were a violation to his rights under article 28 and 49 and further order that he is entitled to damages, payable by the 1st Respondent who initiated his arrest.
135. Accordingly, I award the Petitioner, the sum of Kshs 250000 payable by the 1st Respondent.
136. Having regard to the nature of the Petition each party will bear its courts.
137. DETERMINATION
Conclusion
a) The upshot of the foregoing is that the Petition fails save the declaration that the manner of arrest and detention for 3 days of the Petitioner between 26th April 2019 and 30th April 2019 was capricious, arbitrary, an abuse of power, legal process, and discretion, unjustifiable and was otherwise unlawful, illegal and / or unconstitutional and a violation of his rights under Article 28 and 49 of the Constitution of Kenya
b) The Petitioner is awarded the sum of Kshs 250,000 as damages payable by the 1st Respondent.
c) No order as to costs
Orders Accordingly
DATED, SIGNED AND DELIVERED at NAIROBI VIRTUALLY THIS…24th……… DAY OF ………February………… 2023.
P M NYAUNDI
JUDGE
IN THE PRESENCE OF:-
Lucy Mwangi Court Assistant
Ms Soweto for the Petitioner
Ms Ngethe for the 1st Respondent
MS Mutellah for 2nd Respondent and H/B for Mr. Kihara
IN THE HIGH COURT OF KENYA AT NAIROBI
ANTI CORRUPTION AND ECONOMIC CRIMES DIVISION
ACEC PETITION NO. 30 of 2019
IN THE MATTER OF ARTICLE 22(1), 23 &24 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 3(1), 10,19,20,21,27(1) AND (2), 28,29,31,35(2), 38,47(1), 49( F,G,H) AND 50(1),(2), (a) & (4) OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE CHIEF MAGISTRATE’S COURT ANTI CORRUPTION CRIMINAL CASE NO. 8 OF 2019 REPUBLIC VS DR. EVANS ODHIAMBO KIDERO & OTHERS
BETWEEN
EVANS KIDERO….…………………………………………...PETITIONER
VERSUS
ETHICS AND ANTI- CORRUPTION COMMISSIONS. 1st RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS…………. 2nd RESPONDENT
CHIEF MAGISTRATE’S COURT MILIMANI ANTI-CORRUPTION COURT ……………………………………………………3rd RESPONDENT
THE ATTORNEY GENERAL…………………………. 4th RESPONDENT
WACHIRA, MBURU, MWANGI &
COMPANY ADVOCATES………………………. 1st INTERESTED PARTY
GEORGE WAINAINA NDUNGU……………. 2nd INTERESTED PARTY
JOHN NDIRANGU KARIUKI………………….3rd INTERESTED PARTY
PAUL MUTUNGA KARIUKI……………………4th INTERESTED PARTY
MANASSEH KARANJA KEPHA…………..……5th INTERESTED PARTY
PHILOMENA KAVINYA NZUKI…………..….6th INTERESTED PARTY
NG’ANG’A MUNGAI NG’ANGA …………..…..7th INTERESTED PARTY
CHARITY MURINGO NDIRITU………………8th INTERESTED PARTY
PETERSON ANDREW NJIRU……………..….9th INTERESTED PARTY
EKAYA ALUMASI GHNZOUR……………….10th INTERESTED PARTY
JAMES MIMI MBUGUA……………………….11th INTERESTED PARTY
ELIZABETH WANJIRU NDERITU…………..12th INTERESTED PARTY
ALICE NJERI MUNDIA………………….……13th INTERESTED PARTY
HANNAH MUTHONI KARIUKI………….…14th INTERESTED PARTY
JOHN NGARI WAINAINA…………………….15th INTERESTED PARTY
THE CUPS LIMITED………………………….16th INTERESTED PARTY
JUDGMENT
INTRODUCTION
1. Vide Petition dated 10th September 2019 filed on 16th September 2019, the Petitioner seeks the following orders
a) Spent
b) Spent
c) A declaration be and is hereby issued that the 1st and 2nd Respondents have threatened, contravened and / or violated the Petitioner’s rights and fundamental freedoms guaranteed under Articles 27 (1) and (2), 28,29,31 (a,b,c) 35(2), 47(1), 49 (f,h), 50(1), 2(a) and 50 (4) of the Constitution of Kenya.
d) A declaration be and is hereby issued that the institution, maintenance and conduct of Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others is unconstitutional, discriminatory, malicious, oppressive, vexatious, an abuse of the process of the Court and therefore unlawful, null and void ab initio.
e) A declaration be and is hereby issued that the institution, maintenance and conduct of Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others in specific relation to the Petitioner is unconstitutional, discriminatory, malicious, oppressive, vexatious, an abuse of the process of the Court and therefore unlawful, null and void ab initio.
f) A declaration be and is hereby made that the arrest and detention of the Petitioner between 26th April 2019 and 30th April 2019 was capricious, arbitrary, an abuse of power, legal process, and discretion, unjustifiable and was otherwise unlawful, illegal and / or unconstitutional.
g) A declaration be and is hereby made that the arrest and detention of any person in police custody other than for a reason permitted by law and for any period than is reasonably necessary, or where it can be demonstrated that there was no reason to keep the person in custody is illegal and unconstitutional.
h) A declaration be and is hereby made that the publication and circulation of the press statement dated 26th April 2019 and 25th April 2019 by the 1st and 2nd Respondents was unprofessional, reckless, prejudicial, unlawful, and contravened the right of the Petitioner guaranteed under Article 50(2)(a) of the Constitution.
i) A declaration be and is hereby made that the 1st and 2nd Respondents have acted recklessly, carelessly, negligently, unprofessionally and unnecessarily threatened, violated and infringed upon the Petitioner’s rights and fundamental freedoms under Articles 28, 29 (a,c,d, f) and 50(2)(a).
j) A declaration be and is hereby made that any public officer who abuses his /her power, acts unreasonably, recklessly, carelessly, unprofessionally, without due regard to the bill of rights whilst executing or carrying out an official function or duty is liable to be surcharged personally for any damages arising therefrom and / or subject to sanctions.
k) An declaration be and is hereby made that the order and/ or warrant dated 19th January 2016 made and / or obtained in Makadara Chief Magistrate’s Court Misc. Criminal Application No. 38 of 2016 to investigate the Petitioner’s bank account No. 068000004475 in Family Bank was made and obtained unlawfully and/ or illegally.
l) An order be and is hereby made quashing the order/ warrant dated 19th January 2016 made and / or obtained in Makadara Chief Magistrate’s Court Misc. Criminal Application No. 38 of 2016 in relation to the Petitioner’s Bank Account No. 068000004475 in Family Bank.
m) An order of Certiorari be and is hereby issued to remove into the High Court and quash the decision(s) of the 1st and 2nd Respondent made on or about 25th and/ or 26th April 2019 to bring charge and institute criminal proceedings against the Petitioner in Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others.
n) An order of Certiorari be and is hereby made to remove into the High Court and quash the charges contained in the Charge Sheet dated 29/4/2019 Police Case No. 148/5/2019 brought against the Petitioner in the said charge sheet in Anti-Corruption Criminal Case No. 8 of 2019 Republic v Dr. Evans Odhiambo Kidero & 15 Others.
o) An order of prohibition be and is hereby issued against all the Respondents jointly and severally prohibiting any of them from carrying on and / or proceeding with Anti-Corruption Case No. 8 of 2019- Republic v Dr. Evans Odhiambo Kidero & 15 Others in relation to the Petitioner.
p) An order of Prohibition be and is hereby issued against all the Respondents jointly and severally prohibiting any of them from reopening or purporting to reopen, bringing, instigating, instituting, carrying out and / or proceeding with any criminal proceedings or charges in connection with the payment of legal fees to the firm of Wachira Mburu& Co. Advocates on account of Milimani Commercial HCCC No.875 of 2010.
q) An order of prohibition be and is hereby issued directed to all the Respondents jointly and severally prohibiting them from reopening or purporting to reopen, bringing, instigating, instituting, carrying out and or proceeding with any criminal charges in connection with the payment of legal fees to the firm of Wachira Mburu& Co. Advocates on account of Milimani Commercial HCCC No.875 of 2010 in relation to the Petitioner.
r) The 1st and 2nd Respondents be and are hereby ordered jointly or severally to pay the Petitioner damages in the sum of Kenya Shillings Two Hundred Million (200,000,000.00) for the violation of the Petitioner’s rights and fundamental freedoms; and for the Petitioner’s unlawful arrest, detention, false imprisonment, intimidation, hindrance, malicious prosecution, pain, anguish, suffering, torture, cruel inhuman and degrading treatment and harassment.
s) The costs of this petition be provided for
t) Any other and / or further orders the honourable Court deems just and fit to grant and/ or may commend themselves in the course of hearing the Petition.
2. The Petitioner challenges his arraignment on the following grounds.
a) Lack of factual foundation, absurdity, unreasonableness, and irrationality
The Petitioner sets out in paragraphs 12 to 22 of the Petition what he perceives to be the origin of the charges he is faced with and faults the prosecution on the following grounds;
i. that he was not at the Nairobi City council when the facts that underlie the charges arose.
ii. That the debt in any event was valid and due. The Petitioner contends that the subject money was legal fees payable to the firm of Wachira Mburu and Co. Advocates for services rendered in respect of HCCC No. 875 of 2010. The Petitioner contends that to the extent that the Charges stem from the payment of the sum of Kshs 58m to the firm of Advocates, the criminal case and the proceedings are an abuse of the Court process and therefore oppressive.
3. It is the Petitioners position that the criminal justice system is being manipulated by the 1st and 2nd Respondents for ulterior motives and to achieve extraneous purposes.
b) illegal exercise of discretion abuse of power, abuse of legal process, malice, oppressiveness improper motive and / or extraneous purpose.
The Petitioner takes issue with the mode of his arrest- he was taken from his house at 6am on the 26th April 2019 and held at Integrity Centre until 4pm when he was moved to Kilimani Police station and presented to Court on Monday 29th April 2019.
4. The Petitioner maintains that the 1st Respondent deliberately and maliciously delayed his presentation before Court and by so doing abused their power.
5. He also takes issue with statements released by the 1st and 2nd Respondent which in his view were 'part of well-choreographed plan, maliciously calculated and deliberately intended to lay a basis for embarrassing, humiliating and stripping away the Petitioner's human dignity and portraying the Petitioner as a villain a disgraced degenerate and prejudging the Petitioner's guilt in the eyes of the public’.
6. c) Lack of impartiality, inconsistency, capriciousness and discrimination
The Petitioner alleges that he has been discriminated against. He was not invited to give information relating to the investigation. This is contrary to fair administrative action and natural justice. He has not been given the opportunity to present exculpatory evidence.
7. Specifically, he takes issue with the fact that Aduma Joshua Awour who gave instructions in respect of HCCC No. 875 of 2010 was only charged after persistent demands by his defence team.
8. The Petitioner argues that the failure in the first instance to Charge Aduma Joshua Awour demonstrates that the investigations were not impartial and were infact discriminatory.
9. The Petitioner contends further that the malice and capriciousness of the Respondents is demonstrated by their conduct during the pre-Trial conference when they withheld documents which included original charge sheet.
10. d) Contravention of statute
The Petitioner is aggrieved that the 1st Respondent obtained access to his bank accounts without following due process and specifically that the Petitioner was not informed, notified or requested to furnish, within a reasonable time any information required by the 1st Respondent.
11. In so acting the 1st Respondent acted contrary to the provisions of Sections 26,27,28,29 and 30 of the ACECA
12. e) Violation of the Petitioner's rights and fundamental freedoms.
It is the Petitioners contention that the actions cited above occasioned a violation of the following rights;
i) National values and principles of governance under Articles 10 (I ) and (2) of the Constitution.
the Petitioner faults the 1st and 2nd Respondent for acting reckless regard and in violation of their duty to respect always uphold and defend the constitution as stipulated under Article 3 of the constitution.
13. It is further argued that the 1st and 2nd Respondents have failed to uphold the rule of law, good governance integrity , transparency and accountability and have not acted in the public interest
14. ii) Equality and freedom from discrimination ; Contravention of Statute
By failing to apply the provisions of Sections 26,27 and 28 of ACECA and other safeguards which are designed to protect persons under investigation and especially when they may have exculpatory evidence, the Respondents denied and prevented the Petitioner's enjoyment of any benefit he could have and would have received.
15. The Petitioner did not receive similar accommodations that were extended to other persons and suspects.
16. iii) Right to human dignity under Article 28 of the Constitution
The actions of the Respondents have undermined human dignity of the Petitioner and have humiliated and embarrassed him. The detention of the Petitioner at the Police station was calculated to undermine his reputation before the public and to take away his right to be presumed innocent until proven guilty.
17. The actions of the 1st and 2nd Respondents were deliberate, malicious and media and unlawfully courted media publicity. Further they published and publicized false and misleading statements geared at tarnishing the name and political reputation of the Petitioner.
18. The Petitioner reiterates the mode of his arrest, the differential treatment of the other suspects is a demonstration of actions of the Respondents intend to humiliate him.
19. He alleges further that the state machinery has been deployed to subjugate him.
20. The holding of the Petitioner at the Police station for 3 days without reason was unreasonable and unjustifiable.
21. iv) Freedom and security of the person under Article 29 of the constitution.
The Petitioner contends that the 1st and 2nd Respondents have subjected him to violence by misusing and abusing state power, resources and machinery and he is unable to defend himself. He cites his detention days for 3 days as a deliberate means to overbear and subjugate him and expose him to psychological torture.
22. The Petitioner states that all this is intended to force his hand politically and that this is tantamount to inhuman and degrading treatment.
23. v) Privacy under Article 31 (a,b, c)
The facts leading to violation are set out in paragraph 65-73 of the Petition. The Petitioner states the 1st Respondent didn’t have probable cause to search the Petitioner's bank accounts and acted outside the law.
24. vi) Access to information under Article 35(2) of the Constitution
The Petitioner contends that the Respondents having published false information about him, he has the right to have that information deleted or corrected.
25. vii) Political Rights under Article 38 (1)( a,b,c) and 3 ( c)
The Petitioner contends that the goal of the malicious prosecution is to undermine his political rights and electability and to force his hand on who he deals with, supports or associates with politically.
26. viii) Right to Fair Administrative Action under Article 47(1)
The Petitioner takes issue with the manner the investigations were initiated, and recommendations made for prosecution. The Petitioner contends that the 1st Respondent has deliberately and with malicious intent misrepresented the exculpatory evidence to justify the prosecution of the Petitioner.
27. The 2nd Respondent's turn around in deciding charge Aduma Joshua Owour months after the Petitioner had raised the issue and subsequent application to seek to consolidate the matters has compromised the Petitioner's right to a process that is expeditious and efficient.
28. ix) Rights of arrested persons under Article 49 (1) (f,h)
The Petitioner reiterates the facts and grounds in paragraphs 50 to 56 of the Petition and maintains that there weren't exceptional circumstances to justify holding him for 3 days without offering him bail or bond.
29. x) Right to a fair hearing guaranteed under Article 50 (1),2(a) and (4) 9 the constitution
The Petitioner is aggrieved that his right to a fair Trial was compromised by the misleading statements inferring that he was guilty. He further argues that the extra judicial punishment and treatment he was subjected leads to the inference that he is guilty.
30. The Petitioner reiterates that the manner in which evidence was unlawfully obtained from his bank account was a violation of this right.
31. The Petition is supported by 65 paragraph Affidavit sworn by the Petitioner on 12th September 2019 and filed in Court on 16th Sept 2019.
32. The Petition is opposed by both the 1st and 2nd Respondents.
33. The 1st Respondent relies on the Affidavit of Catherine Ngari an investigator with the Ethics and Anti-Corruption Commission sworn on the 19th February 2020. She is categorical that the 1st Respondent acted in exercise of its mandate and that there is no evidence of malice, illegality, irrationality, procedural impropriety, or unreasonableness on the part of the 1st Respondent.
34. The investigations of the 1st Respondent were sparked by a report in the Nairobi Star on 2nd February 2017 exposing a scam in the them City Council of Nairobi ( CCN) and a firm of Advocates.
35. The details and findings of the investigation are set out on paragraph 8 of the Affidavit. In paragraph 9 of her affidavit she makes reference to the Forensic Audit report dated 31st January 2012 that recommended against the payment of the sums owing to the Firm of Advocates and demanding the refund of the Kshs 10 Million that had been paid earlier.
36. In paragraph 14 of the Affidavit, she depones that the investigations showed that on 7th January 2014, the sum of Kshs 58 Million was paid to the Firm of Advocates and on the same date payments were made out of the lawyers account to various accounts specified in paragraph 14 (i-vii).
37. Among the payments made was a payment of Kshs 15 million to The Cups Limited which is owned by George Wainaina Njogu and John Ngari Wainaina. Pursuant to warrants obtained on 19th January 2016 to investigate the accounts of the Petitioner, the Commission and found that Cups Limited had transferred Kshs 14,400,000.00 to the Petitioners account on 8th January 2014.
38. George Wainaina Njogu was Chief of Staff at the Nairobi City County Government, and the Petitioner was the Governor at the material time.
39. Vide Paragraph 17, the Ist Respondent avers that contrary to the Petitioners assertion that the payment of Kshs 14.4 Million was in respect of a car he had sold to George Wainaina, as at 23rd February 2017 when a search was undertaken at the Registrar of Motor Vehicles, the vehicle was still registered in the name of the Petitioner.
40. It was averred that this in addition to the fact that the Sale Agreement was executed almost 6 days after the money was transferred. For these reasons doubted the veracity of the Petitioner’s claim to have sold the motor vehicle.
41. The 1st Respondent avers that it was based on these facts that it recommended that the Petitioner be charged. The 2nd Respondent agreed with these recommendations and proceeded to charge the Petitioner alongside others in Milimani magistrate’s Court in ACC No. 8 of 2019; Republic Vs Dr. Evans Odhiambo Kidero & 15Others on 29th April 2019.
42. Accordingly, the 1st Respondent denies that the Petitioner’s rights have been violated and submits that the issues raised by the Petitioner are best raised before the Trial Court as part of his defence.
43. The 2nd Respondent in opposing the Petition relies on the Affidavit of Hellen Mutellah sworn on 30th June 2020.
44. Parties agreed to dispose of the Appeal by way of written submissions. The Petitioner filed submissions dated 13th November 2020. The Ist Respondents submissions are dated 4th December 2020. The 2nd Respondent’s submissions are dated 7th December 2020. The Parties also appeared virtually before Court on 27th January 2023 and highlighted their submissions.
SUBMISSIONS
Petitioner’s Submissions
45. The Petitioner contends that absent a factual foundation for the charges the prosecution must fail. Further that the prosecution of the Petitioner in the absence of a factual foundation is evidence of absurdity, unreasonableness and irrationality by the 1st and 2nd Respondent.
46. The Petitioner submits that the charges are hinged on the payment of Kshs 58 million to the firm of Wachira Mburu and Company Advocates and on the erroneous conclusion by the Forensic Audit Report that recommended that the payment ought not be made.
47. It is further submitted that absent evidence of collusion between Wachira Mburu and Company Advocates, Kyavee Holdings and or Roy Olum the charges cannot possibly lie.
48. Further it is submitted that the facts that are the basis of the charges which the Petitioner faces happened prior to the Petitioner’s time at the County Government of Nairobi. The Petitioner only acted to ensure the payment of a debt that was due and payable.
49. The Petitioner invites the Court to scrutinise the evidence upon which the 1st and 2nd Respondent made the decision to charge and relies on the decision of Njuguna S. Ndungu Vs Ethics &Anti Corruption Commission (EACC) & 3 Others [2018] eKLR in which Githinji JA stated
“[24]….In my respectful view, the High Court erred in law by failing to scrutinise the charges, the relevant documents including the decisions of the Evaluation Committee, tender Committee, Review Board and the High Court proceedings and reach a conclusive and objective decision on whether or not the charges had any legal or factual foundation and also a realistic prospect of conviction.”
50. The Petitioner further cites the decision of the Court of Appeal in Diamond Hasham Lalji & Anor Vs Attorney General and 4 others [2018] eKLR in which the Court set out the responsibility of the Court as
“[45]…At this stage, the Courts should not hold a fully-fledged inquiry to find if evidence would end in conviction or acquittal. That is the function of the Trial Court. However, a proper scrutiny of facts and circumstances of the case are absolutely imperative.”
51. The Petitioner invites the Court to be guided by the decision of Lenaola J ( as he then was ) in Justus Mwenda Kathenge Vs Director of Public Prosecution & 2 Others [ 2014] eKLR and invoke Article 165(3)(d)(ii) and quash the proceedings in the Trial Court for being inconsistent or in contravention of the Constitution.
52. The Petitioner also calls on the Court to be guided by the decisions in Richard Malebe Vs Director of Public Prosecutions & 2 Others; R Vs The Makadara Chief Magistrate & 2 Others Ex Parte Wilberforce Nyamboga Mariaria [2017] eKLR and Tom Odhiambo Ojienda SC Vs Director of public Prosecutions and 3 Others [2020] eKLR , in which the Court faulted the DPP for preferring charges where there was lack of evidential basis and ignoring exculpatory evidence presented to the investigator before the proceedings are instituted.
53. The Second ground that the Petitioner raises is that the prosecution amounts to illegal exercise of discretion, abuse of power, abuse of legal process, malice, oppressiveness, improper motive and/ or extraneous purpose.
54. The basis for this contention is the conduct of the 1st and 2nd Respondent soon after the release of the Petitioner in issuing highly publicised media statements. It is contended that the 1st and 2nd Respondent actions are evidence of ulterior motive on their part. Reference is made to the decisions of R V Somerset County Council ex parte Fewings and Others [1995] 1 All ER 513 at 524 on the parameters within which public power must be exercised and the duty to the public who donate that power.
55. The Petitioner invites the Court to consider the European Court of Human Rights 1995 Decision in CASE OF ALLENET DE RIBEMONT v. FRANCE Application No. 15175/89) where, on almost identical facts the Regional Court found that the Applicants right to presumption of innocence had been violated as the statement by the senior government officials ‘encouraged the public to believe him guilty and secondly, prejudged the assessment of the facts by the competent judicial authority.’
56. Having faulted the media statements by the Ist and 2nd Respondents, the Petitioner urges that the same can only have been informed by the ulterior motive of parading the Petitioner as a ‘big fish’ or catch in their score cards. It also betrayed that the 1st and 2nd Respondents were ready to go to and had infact gone to any length to charge and prosecute ‘a big fish’ and justify to the public ‘the war on corruption.’
57. The Petitioner refers this Court to the decision in Bitange Ndemo Vs Director of Public Prosecution & 4 Others [2016] eKLR in which the Court held that ‘if it is demonstrated that the predominant purpose of the prosecution is to further that ulterior motive, then the High Court will intervene.’
58. On the issue of excessive use of force and prolonged and unjustified detention of the Petitioner, reference is made to Peter Macharia Ruchachu Vs Director of Public Prosecution & Anor [2014] eKLR where the Court held the manner of arrest, use of handcuffs where a person submits to the arrest or the custody of the arresting officer or officers, offended Section 21 of the Criminal procedure.
59. Further the Petitioner relies on the Courts decision in Tom Odhiambo Ojienda SC v Director of Public Prosecutions & 3 others [2020] eKLR wherein the Court in citing Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR frowned at the practice of arresting suspects on Friday to hold them over the weekend.
60. On the subject of illegally obtained evidence the Petitioner relies on the decision in the case of Philomena Mbete Mwilu v Director of Public Prosecution & 3 Others ; Stanley Muluvi Kiima ( interested party); International Commission of Jurists Kenya Chapter ( Amicus Curiae) [2019] eKLR and calls for the prosecution case to be halted.
61. The Petitioner scaffolds this position and places reliance on the decisions in Tom Odhiambo Ojienda Supra; Manfred Walter Schmitt & Anor v Republic & Anor [2013] eKLR and South African Supreme Court decision in Goqwana v Minister of Safety NO & Others ( 20668/2014) [2015] ZASCA; [2016] 1All SA 629 ( SCA) ( 30 November 2015) in which the Courts have held that ‘A search warrant embodies awesome powers as well as formidable consequences. It must be issued with care, after careful scrutiny by a magistrate or justice, and not reflexively upon a mere checklist approach’.
62. On whether the Petitioner is entitled to orders of Prohibition, it is the Petitioner’s submission that they have laid the basis for the Court to grant the order. It is their submission that the proceedings in the Trial Court are an abuse of Court process, are oppressive, have been commenced in disregard of the rules of natural justice. As precedent they rely on the cases of Agnes Ngenesi Kinyua Supra; Joram Mwenda Guantai vs The Chief Magistrate, Nairobi Civil Appeal No. 228 of 2003 [2007] and Kuria & Others Vs Attorney General [200] 2 KLR 69. Which decisions have consistently found;
“…A prosecution that is contrary to public policy ( or interest) will not be allowed…A prosecution that is oppressive and vexatious is an abuse of the process of the Court: there must be some prima facie case for doing so.”
63. Finally the Petitioner submits that he is entitled to damages of Kshs 200,000,000.00 for the violation of his rights and fundamental freedoms on account of his arrest, detention, false imprisonment, intimidation, hindrance, malicious prosecution, pain, anguish , suffering, torture, cruel inhuman degrading treatment and harassment. In setting this figure the Petitioner relies on the case of Miguna Miguna Vs Fred Matiangi Cabinet Secretary, Ministry of Interior and Coordination of National Government and 6 Others; Kenya National Commission on Human Rights ( Interested Party( [2018] eKLR.
64. It is argued that this figure is necessary to act as a deterrent and to send a message that there can be no right without a remedy.
65. The Petitioner also submits that the damages should be paid personally by the officers who occasioned the violation.
1st Respondent Submissions
66. The 1st Petitioner identified the following as the issues for determination.
a) Whether or not the decision to charge the Petitioner is malicious, oppressive, contrary to statute and public policy, an abuse of Court process and is for an extraneous and / or illegal purpose or motive unconnected with the vindication of a crime committed.
b) Whether there was a violation, breach or abrogation of the Petitioner’s rights and freedoms under Articles 27(1) & (2), 28,29,31,35(2), 38,47 (f,g,h) and 50(1),(2) ( a) & 8 of the Constitution in the Course of the investigation
c) Whether the Petition meets the threshold of a constitutional petition.
d) Whether tie Court should interfere with the exercise of the mandate of the 1st and 2nd Respondents and halt the prosecution of the Petitioner following investigations by the 1st Respondents.
e) Whether Petitioner is entitled to general compensation.
67. On Issue (a), it is submitted that the 1st Respondent has the legal mandate to investigate corruption and sets out the legal instruments which include the Constitution, the ACECA Act, the EACC Act, the Leadership and Integrity Act and the Bribery Act.
68. The 1st Respondent is opposed to an inquiry that would result in this Court transforming itself into a Trial Court and must also avoid usurping the constitutional and statutory mandate of the Commission to investigate well founded allegations of corruption and economic crimes. On this argument the 1st Respondent relies on the decision in Ronald Leposo Musengi v Director of Public Prosecutions and 3 Others [2015]
69. Since the contesting accounts on the source and purpose of the funds deposited in the Petitioner’s account can only be resolved by adducing evidence then as decided in the case of R Vs Director of Public Prosecutions and Anor Exparte Patrick Ogola Onyango and 8 Others (2016) eKLR the same should be left to the Trial Court. The 1st Respondent also relies on the case of Eric Kibiwott Tarus Vs Director of Public Prosecutions and 7V Others (2014) eKLR.
70. On whether warrants obtained by the 1st Respondent offended the provisions of Sections 26,27,28,29 and 30 of the ACECA and violated his rights under Article 31,40,47 and 50 of the Constitution, the 1st Respondent contends that the said rights are subject to the constitutional limits under Article 24 of the Constitution.
71. The 1st Respondent relies on the authorities of Mape Building & General Engineering Vs Attorney General & 3 Others[2016] eKLR; Ombati t/a Nchogu, Omwanza and Nyasimi Advocates and Director of Criminal Investigations Department, Emmanuel Kanyungu & 3 others [2017] eKLR and Court of Appeal decision in Okiya Omtatah Okoiti & Others Vs Hon. Attorney General & Others. Petition No. 109 of 2016 (consolidated with ACEC Petition No. 8 of 2017) and the Supreme Court Civil Application No. 21 of 2019 EACC Vs Prof Tom Ojienda & Others in which the Court granted orders of stay where the issue of notice under the ACECA Act and application under Section 118 of the Criminal Procedure Code and Section 180 of the Evidence Act were in issue.
72. On issue (b) the 1st Respondent denies that the Petitioner’s rights were violated. It is therefore denied that the actions of the Respondents contravened in any way Article 10 of the Constitution on National Values and principles of governance. To hold otherwise would be to interpret the Constitution in a manner that offers protection to persons suspected of corruption and/ or economic crimes.
73. The 1st Respondent denies that the Petitioner’s rights under Article 27(1) & (2) of the Constitution were violated. Specifically, it is claimed that the Petitioner has not established as required how this right was violated. It is argued that the Commission acted in exercise of its statutory mandate. Differential treatment is not discrimination. The Court is invited to consider the decision on Republic Vs Director of Public prosecution & others Exparte Meridian Medical Centre Ltd & 7 others [2015] eKLR and Nairobi High Court Petition 298 of 2008; James Nyasora Nyarangi & 3 Others Vs the Attorney General
74. Right to Fair Hearing, the 1st Respondent states that the Petitioner has not been denied an opportunity to have redress before the Courts. And further that the press statement and investigations into his account did not violate this right. It is submitted that the criminal justice system has sufficient safeguards to prevent violation of the Petitioner’s rights.
75. The claim that his rights under Article 47(1), Fair Administrative Action were violated on account of the impugned search warrants is rebutted.
76. The alleged infringement of Right to Privacy as articulated in Article 31 ( a, b, c) is controverted on the basis that in accessing the accounts of the Respondent, the 1st Respondent was executing a lawful order. Further that Article 24(1) provides for limitations to rights and in this instance the limitation was deemed necessary to safeguard the public interest in combatting corruption and economic crime.
77. In response to the charge that the Respondent’s violated his right to information under Article 35(2) of the Constitution, the 1st Respondent asserts that by virtue of Section 29(1) of the ACECA they are obligated to share with the public ‘ important information’.
78. In relation to Article 38(1) ( a, b and c) and (3)(c), the 1st Respondent submits that the Petitioner has not demonstrated how his political rights have been breached.
79. Regarding rights of Arrested persons, the 1st Respondent states that the Petitioner having been arrested on a Friday, the next available date for his arraignment in Court was Monday and he was taken to Court on the 29th April 2019.
80. Regarding the alleged violation of his Right to Human Dignity and freedom and security of the person, it is contended that the Petitioner did not prove that during his detention he was treated in a manner that violated his right to human dignity.
81. With regard to issue ( c ), whether the Petition meets the threshold for a constitutional Petition. The 1st Respondent relies on Anarita Karimi Njeru Vs Republic (1979) KLR 54 for the proposition that the Petitioner is required to set out with due particularity the nature of his claim by identifying the right violated and how it is violated. The principles in Anarita Case were emphasized in Mumo Matemu V Trusted Society of Human Rights Alliance and 5 Others Civil Appeal No. 290 OF 2012 (2013) eKLR.
82. It is contended that the Petitioner having failed to link the investigation process, his arrest by the Commission, arraignment and prosecution by the Director of Public Prosecution to a breach of any Constitution, the Petition is for dismissal.
83. On issue (d) whether the Court should interfere with the exercise of the mandate of the Commission and the 2nd Respondent, the 1st Respondent is categorical that the Trial Court should be allowed to deal with the matter. Reference is made to the following decisions Kipoki Oreu Tasur vs Inspector General of Police &5others (2014) eKLR; Thuita Mwangi &Anor vs The Ethics and Anti-Corruption Commission & 3 others Petition No. 153 &369 of 2013.
84. It is further argued that since the Petitioner is seeking Judicial Review orders, these can only be obtained on the basis of an error of law where the mistake goes to the jurisdiction and decision making process of the tribunal, public body or authority. This was the import of the Court’s decision in Republic vs The Retirement Benefits Appeal tribunal Ex Parte Augustine Juma & 8 Others [2013] eKLR; Meixner & Anor vs Attorney General [2005] 2 KLR 189; Total Kenya limited & 9 Others V Director of Criminal investigation & 3 Others [2013] eKLR; Salome Munubi V Director of Public Prosecution & 5 others; National Land Commission & 13 others ( Interested Parties) [ 2019] eKLR
85. On issue (e), whether the Petitioner is entitled to general compensation and costs, the 1st Respondent reiterates that it acted properly and lawfully within its mandate and cannot therefore be condemned to pay damages.
86. In concluding the 1st Respondent points out that allowing the Petition would be tantamount to providing a blanket bar to investigations and prosecution where a person is suspected to be involved in corrupt conduct. Finally, the 1st Respondent cites the Court in the case of Hussein Khalid &16 Others v Attorney General and 2 others [2019] reiterating that the constitutional safeguards that exist extend to the right to a fair Trial and that therefore the Petitioner should subject himself to the jurisdiction of the Trial Court and argue his defence there.
2nd Respondents Submissions
87. The 2nd Respondent submits that the matters raised by the Petitioner are matters for Trial Court to assess and test.
88. The 2nd Respondent identifies 2 issues for determination.
a) Whether or not there was a basis for the Charges against the Applicant/ Petitioner.
b) Whether the 2nd respondent infringed and / or threatened the Applicant/ Petitioners fundamental rights and freedoms to warrant the orders sought.
89. On the 1st Issue, the 2nd Respondent in response to the Petitioners claim that the there is no factual basis or foundation for the criminal charges and that the same are motivated by a predominant purpose of achieving an illegal and ulterior motive of persecuting the petitioner submits that Article 157 (6) confers on the DPP the state powers of prosecution.
90. In exercise of its independent mandate the DPP preferred charges against the Petitioner/ Applicant after an independent review of the recommendations by the 1st Respondent as set out in paragraph 17 of the Submissions.
91. In response to the assertion by the Petitioner that the charge related to conspiracy must fail, the 2nd Respondent relies on the decision in R Vs Meyrick & Ribuffi [1930] 21 CR APP R 94 in which the court held inter alia
…what has to be ascertained is always the same matter: is it true to say, in the word already quoted, that the acts of the accused were done in pursuance of a common criminal purpose held in common between them..
92. It is the 2nd Respondent’s assertion that the Court be guided by the decision in Meixener & Anor Vs Attorney General [200] 2 KLR 189; Republic Vs Director of public Prosecutions & 2 Others Ex- Parte Stephen Mwangi Macharia JR Misc Application 20 of 2014 [2014] eKLR and R Vs Director of Public Prosecutions & Anor; Mukesh Patel & Anor Ex Parte Warsama Ismail [2019] eKLR
93. On the 2nd issue regarding the violation of the petitioners rights the 2nd Respondent submits that the Petitioner has made general allegations relating to the alleged violations of his rights and fundamental freedoms which is against the laid down requirement of specificity as provided for under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Reliance is placed on the decision of the Court in Japheth Ododa Origa V Vice Chancellor University of Nairobi & 2 Others.
94. The 2nd Respondent further submits that as relates to the right to human dignity and fair administration action these are not absolute rights and that the actions of the Respondent fall within the parameters of Article 24(1) of the Constitution. The 2nd Respondent relies on the decision of the Court in Jack Mukhongo Munialo & 12 0thers v Attorney General & 2 Others Nairobi hIGH court Petition No. 182 of 2017 [2017] eKLR
95. In response to the prayer for grant of prohibition orders, the 2nd Respondent relies on the decision in Douglas Maina Mwangi Vs Kenya Revenue Authority and Anor, High Court Petition No. 528 of 2013, where it was held that the jurisdiction of the court to interfere with the exercise of the DPP’s discretion in making prosecutorial decisions should be exercised sparingly and in the clearest of cases and where it has been unfairly and improperly exercised.
96. The independence of the office of the DPP was also underscored in the decision of Republic Vs DPP Ex Parte Victory Welding Works and Anor. HC Misc Appl. No. 249 of 2012
97. It is submitted that having failed to demonstrate that the prosecution/ criminal proceedings are an abuse of the Court process and/ or an infringement of the Petitioners fundamental freedoms and rights, the Petition is an attempt to curtail the mandate of the criminal justice system actors. Reference is made to the decisions of Cape Holdings Ltd Vs Attorney General and Anor ( 2012) eKLR; John Swaka vs The DPP and 2 others [2013] eKLR; Republic vs The Chief Magistrate and 2 others Ex Parte Tusker Mattresses Ltd and 3 Others HC Misc. Application No. 179 of 2012; Kuria & 3 Others Vs Attorney General (2002) eKLR 69 and Attorney General Vs IG, DPP Ex Parte Thomas Nganga Munene 9 20140 eKLR; rEPUBLIC Vs Commissioner of Police and Anor; Ex Parte Michael Monari & Anor ( 2012) eKLR ; Republic V Attorney General & 4 Others Ex Parte Kenneth Kariuki Githii [2014] eKLR
98. In concluding the 2nd Respondent therefore contends that the Petitioner has not provided a basis for the grant of the orders sought.
ANALYSIS
99. On reviewing the pleadings of the parties, their submissions and authorities filed, the following issues are identified for determination.
a) Whether or not there was a factual basis for the Charges against the Petitioner.
b) Whether this is an appropriate case to interfere with the exercise of mandate by the 1st and 2nd Respondents and issue orders of certiorari and prohibition
c) Whether the 1st and 2nd respondent infringed and / or threatened the Applicant/ Petitioners fundamental rights and freedoms
d) If the answer to c) is in the affirmative, what are the appropriate remedies.
e) Who shall pay costs
Whether or not there was a factual basis for the Charges against the Applicant/ Petitioner.
100. In presenting this Petition the Petitioner invokes the mandate of the Court pursuant to Article 22, 23 and 165 of the Constitution of Kenya.
101. Article 22(1) provides, “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.
104. Article 23 provides, (1) “The High Court has jurisdiction, in accordance with article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”.
105. Article 23(3) provides the remedies that the court may grant and in addition to judicial review orders they include 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 justice under article 24; and an order for compensation.
106. Article 165(3) provides, Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters.
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this
Constitution to consider the removal of a person from office, other than a tribunal
appointed under article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution
including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this
Constitution;
(ii) the question whether anything said to be done under the authority of this
Constitution or of any law is inconsistent with, or in contravention of, this
Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of
county governments and any matter relating to the constitutional relationship
between the levels of government; and
(iv) a question relating to conflict of laws under article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
102. In considering this Petition therefore the Court’s primary obligation is to guarantee that the constitutional rights and fundamental rights are safeguarded and further satisfy itself that the exercise of their respective mandates by the 1st and 2nd Respondents is consistent with the Constitution.
103. The Petitioner challenges the DPP’S decision to mount the prosecution on the basis that the prosecution lacks a foundational basis and invites the Court to undertake an inquiry to establish whether the DPP’s actions contravene Article 157 (11) which provides the boundaries within which the DPP ought to exercise his mandate.
104. The Respondent is opposed to the Court undertaking the inquiry and argues that these are issues for determination of the trial court.
105. It is now well settled that once an assertion is made that a prosecution lacks foundational basis the Court must satisfy itself the prosecution does not amount to an abuse of the court process as this will be contrary to the public interest. Guided by the decision of Onguto J IN Republic v Director of Public Prosecutions & another Ex parte Patrick Ogola Onyango & 8 others [2016] eKLR , I am obligated to make an inquiry to establish that the DPP actions are in consonance with Article 157 (11) of the Constitution, once I satisfy myself that the DPP has established reasonable suspicion the rest is left to the trial court.
106. According to the Petitioner, the basis of the charge is the payment of fee owed to the firm of Wachira Mburu & Co. Advocates on account legal services rendered in Milimani Commercial HCCC No.875 of 2010.
107. The Prosecution on the other hand asserts that basis is the payment of the sum of Kshs 58 million notwithstanding the advice of a forensic audit and the subsequent transfers from the lawyers account to various accounts, received by individuals within the County Government including the Petitioner who was the Governor. Thus, laying the basis of a charge of conspiracy with criminal intent.
108. With the tool kit at the disposal of this court I find that I am not sufficiently equipped to resolve the contestation between the Petitioner and the Respondents. I am guided by the decision of the Supreme Court in the Case of Praxidis Namoni Saisi & 6 Others Vs DPP & 2 Others Petition No. 39 of 2019 where the court stated as follows,
[92] It is our considered opinion that these are not issues concerning the propriety or otherwise of the decision by the DPP to charge them. These appear to be serious contentions of fact, evidence and interpretation of the law better suited to be examined by a trial court. Certainly, not for the High Court while exercising its judicial review jurisdiction.
109. In Hussein Khalid and 16 others v Attorney General & 2 others; Petition No. 21 of 2017; [2019] eKLR the Supreme Court held that it was not for the High Court as a Constitutional Court to go through the merits and demerits of the case as that is the duty of the trial Court.
110. The Petitioner has alleged that the charges are meant to stifle his political career or force his hand. He has not substantiated these claims. In the absence of evidence to support this claim, I am unable to find that the Prosecution is malicious and presented with ulterior motives.
111. The Petition therefore fails on the first issue. I find that the Prosecution has established a factual foundation to sustain the charges.
112. On the second issue, whether the Court should issue judicial review orders. As observed in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR, the prosecutorial discretion of DPP is not absolute. It is limited by Article 157(11) which specifies the mandatory considerations that underlie the exercise of discretion,
In exercising the powers conferred by this Article, the Director
of Public shall have regard to the public interest, the
interests of the administration of justice and the need
to prevent and avoid abuse of the legal process.
113. The Court went on to observe,
[34] It is also indisputable that the constitutional prosecutorial power of DPP is reviewable by the High Court as Article 165(2)(d)(ii) of the Constitution ordains. However, the doctrine of separation of powers should be respected and the courts should not unjustifiably interfere with the exercise of discretion by DPP unless it is exercised unlawfully by, inter alia, failing to exercise his/her own independent discretion; by acting under the control and direction of another person; failing to take into account public interest or interest of the administration of justice in all their manifestations; abusing the legal process; and by acting in breach of fundamental rights and freedoms of an individual.
114. In Republic v Director of Public Prosecutions & another; Mukesh Patel & another Ex parte Warsama Ismail [2019] eKLR, Mativo J as he then was stated as follows
40. The High Court's inherent powers to quash, stay or prohibit criminal proceedings are wide as they imply the exoneration of the accused even before the proceedings have been culminated by way of trial. Noting the amplitude of these powers and the consequences, which they carry, the Supreme Court of India[15] revisited the law on the issue and held that these powers should be exercised sparingly and should not carry an effect of frustrating the judicial process.
115. Having found that the Prosecution have demonstrated they have triable facts to present before the trial court, I hold that this is not an appropriate case where judicial review orders should be invoked.
116. On the 3rd Issue, whether the Petitioners rights were violated or infringed. The Petitioners alleges violation of his rights under Articles 27 (1) and (2), 28,29,31 (a,b,c) 35(2), 47(1), 49 (f,h), 50(1), 2(a) and 50 (4) of the Constitution of Kenya
117. It is now well settled that a person who seeks redress under the constitution must state his or her claim with precision and demonstrate which provisions of the Constitution have been violated or infringed and the manner of the alleged violations. This principle was established in the case of Anarita Karimi Njeru v Attorney General (1979) 154 where the court stated;
“We would however again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.”
118. The Petitioner alleges violation of his right to Equality and freedom from discrimination guaranteed under Article 27 of the Constitution. The basis of this claim is the actions of the 1st Respondent are said to be in contravention of Sections 26, 27 and 28 of Anti- Corruption and Economic Crimes Act, 2003 (ACECA) and the differential treatment afforded the co- accused by the Respondents.
119. The Petitioner takes issue that contrary to the provisions of ACECA, the 1st Respondent had access to his bank account without notice to him. This complaint is related to his claim that his right to Privacy under Article 31 ( a,b,c) and his right to Fair Administrative Action under Article 47 were violated.
120. The issue of whether warrants obtained via ex parte applications without notice constitute a violation of the subject’s rights or constitute a legitimate limitation of the right as provided for under Article 24 of the Constitution was addressed by the Supreme Court in the decision of Ethics and Anti-corruption Commission and Anor v Prof Tom Ojienda SC t/a Prof Tom Ojienda & Associates Advocates & 2 Others Petition No. 30 of 2019.
121. In that matter the Supreme Court held that the 1st Respondent is not required to give written notice prior to commencing an investigation in all situations and that the investigative powers of the 1st Appellant did not fall within administrative acts. The Court found that the Appellants right to Fair Administrative action under Article 47 were not violated. Likewise, I find that the Plaintiff’s claim of infringement of rights under Article 47 fails.
122. The Court in Okiya Omtatah Okoiti & Others Vs Hon. Attorney General & Others. Petition No. 109 of 2016 (consolidated with ACEC Petition No. 8 of 2017) had opportunity to pronounce on constitutionality of warrants obtained under the impugned sections of ACECA. The right to privacy guaranteed under Article 31 and balancing this with the public interest to ensure that the investigative authority has the ability to detect crime, and held
[118]….it is understandable why warrants or seizure orders are obtained ex parte when any matter is still at the investigation stage. The justification seems to fall within the provisions of Article 24 (1) of the Constitution.
123. For this reason, I find that the allegation of violation under Article 31 also fails.
124. The Petitioner also claims violation of his rights under Article 27 were infringed on account of differential treatment of the co accused, it is his contention that whereas he was subjected to an arrest the co accused were summoned to report at the 1st Respondents offices. I will deal with this aspect when addressing myself to the alleged violation of Article 49.
125. The Petitioner alleges his right to fair trial under Article 50 of the Constitution were infringed upon by the highly publicised media reports which in his mind were intended to portray him as being guilty. I have had occasion to consider the case of Allenet De Ribemont v France and note that this decision was arrived at after the determination of the criminal case in which the applicant was acquitted. In fact, the dissenting opinion took issue with the courts finding that the right to be presumed innocent until proven guilty may be infringed by other public authorities. The dissenting opinion was of the view that the extended interpretation cannot be guaranteed in a practical and effective way, especially if the remedy is sought as soon as the violation takes place. To illustrate the difficulty reference was made to a Maltese case in which a similar application had been made prior to the determination of the criminal case and at the conclusion of the criminal case the accused was convicted.
126. This issue was also canvassed in the Philomena Mwilu case ( supra). In that case the court observed that notwithstanding the extensive media coverage of the arrest of the Petitioner, eventually a criminal trial is conducted by qualified, competent and independent judicial officers who are not easily influenced by statements made to the press and that courts are able to rise above such publications and utterances.
127. The Court further held that in a criminal justice system such as in Kenya in which the trial is conducted by a judicial officer as opposed to trial by jury, pre-trial media publicity cannot influence the mind of the trial court which is manned by a competent and independent judicial officer.
128. I therefore hold that in the instant case the infringement of Article 50 rights has not been proved.
129. In relation to his arrest and detention the Petitioner alleged violation of his rights under Articles 28, 29 and 49. The circumstances surrounding the arrest and holding of the Petitioner for 3 days before presentation in court are not disputed. Both the 1st and 2nd Respondent explain it away by stating that he was presented to court at the earliest opportunity.
130. It is not contested that the Petitioner is a public figure and a high-ranking member of society, he has served in the past as CEO of Mumias Sugar and prior to the arrest as Governor of Nairobi County. It is also not contested that some of his co accused were summoned to the offices of the 1st Respondent. No explanation has been given as to why it was deemed necessary to conduct an arrest in the manner at 6am and then proceed to hold the Petitioner for 3 days without offering him bail or bond. The circumstances of this case are comparable to those in GBM Kariuki v Attorney General (2016) eKLR where Odunga J as he then was held,
“124. It is therefore my view that in effecting arrest, the same must be done in a manner that accords the suspect his right to dignity and unless there are reasons to believe that the arrest is likely to be resisted, to assemble a whole battalion in order to effect arrest of a Judge as opposed to a “most wanted criminal” or a terrorist, with the result that unnecessary publicity is thereby aroused may well be evidence of malice”
131. Article 49 provides for the right inter alia
(f) to be brought before a court as soon as reasonably possible, but not later than--
(i) twenty-four hours after being arrested; or
(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day; and
(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
132. The Court has on previous occasion expressed its displeasure with the practice of arresting persons on Fridays and holding them in custody over the weekend see the case of Agnes Ngenesi Kinyua aka Agnes Kinywa v Director of Public Prosecution & another [2019] eKLR.
133. Article 20 of the Constitution is clear, the Bill of Rights is not a mere suggestion, it applies to all law and binds all state organs. On consideration of the manner of the arrest of the Petitioner and his subsequent detention for 3 days, I find that his rights under Articles 28 and 49 were violated/ infringed upon. The right to dignity and respect of a person extends even to arrested persons.
134. Having found that the Petitioner’s rights under Articles 28 and 49 were violated, I find further that he is therefore entitled to both a declaration that his arrest and detention were a violation to his rights under article 28 and 49 and further order that he is entitled to damages, payable by the 1st Respondent who initiated his arrest.
135. Accordingly, I award the Petitioner, the sum of Kshs 250000 payable by the 1st Respondent.
136. Having regard to the nature of the Petition each party will bear its courts.
137. DETERMINATION
Conclusion
a) The upshot of the foregoing is that the Petition fails save the declaration that the manner of arrest and detention for 3 days of the Petitioner between 26th April 2019 and 30th April 2019 was capricious, arbitrary, an abuse of power, legal process, and discretion, unjustifiable and was otherwise unlawful, illegal and / or unconstitutional and a violation of his rights under Article 28 and 49 of the Constitution of Kenya
b) The Petitioner is awarded the sum of Kshs 250,000 as damages payable by the 1st Respondent.
c) No order as to costs
Orders Accordingly
DATED, SIGNED AND DELIVERED at NAIROBI VIRTUALLY THIS…24th……… DAY OF ………February………… 2023.
P M NYAUNDI
JUDGE
IN THE PRESENCE OF:-
Lucy Mwangi Court Assistant
Ms Soweto for the Petitioner
Ms Ngethe for the 1st Respondent
MS Mutellah for 2nd Respondent and H/B for Mr. Kihara