' 1. This is a constitutional petition dated 2 June 2024 in which the petitioner seeks:
“1) A declaration that the actions of the Respondents to charge, prosecute and sustain the charges of attempted defilement contrary to section 9 (1) as read with 9(2) of the Sexual offences Act No. 3 of 2006 and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 as against the Petitioner in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi is unconstitutional and in contravention of Articles 50(4) as read with Articles 25 (a) and (c) of the Constitution of Kenya, 2010.
2) An order of certiorari do (sic) issue to remove into this court and to quash the decision of the Respondents to charge, prosecute and sustain the charges of attempted defilement contrary to section 9 (1) as read with 9(2) of the Sexual offences Act No. 3 of 2006 and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 as against the Petitioner in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi.
3) An order of certiorari do (sic) issue to remove into this court and to quash the entire proceedings in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi.
4) An order of certiorari do(sic) issue to remove into this court and to quash the decision on cash bail and bond terms against the Petitioner in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi.
5) An order of prohibition do (sic) issue against the Respondents from charging, prosecuting and sustaining the charges of attempted defilement contrary to section 9 (1) as read with 9(2) of the Sexual offences Act No. 3 of 2006 and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 as against the Petitioner in the Chief Magistrate court atShanzu, MCSO/E014/2024 Republic VS Fredrick Onditi premised on the same facts levelled by the complainant.
6) That this honourable court be pleased to award to the Petitioner damages for violations of his constitutional rights under articles 19, 21, 25, 29, 50,157 and 244 of the Constitution of Kenya, by the Respondents.
7) Costs of this petition.”
2. The petition is supported by the affidavit of the petitioner himself sworn on 2 June 2024. The petitioner has sworn that he is an adult male and that on or around 30 January 2024, he was charged with the offences of attempted defilement contrary to section 9 (1) as read with Section 9 (2) of the Sexual offences Act no. 3 of 2006, and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 in the Chief Magistrate court at Shanzu, MCSO/E014/2024; Republic VS Fredrick Onditi.
3. In support of the charge, Peninah Kadzo Kahindi, the complainant’s mother, stated in her witness statement as follows:
" ... then, after sometime Ryan came outside and his trouser short was loose and the short straps had been cut and they were hanging. That I then took my son inside the room and interrogated him since I was shocked seeing his shorts loose. That, as I was interrogating my son he became reluctant to speak and I took the phone charger wire and started beating him and that''s when he opened up..."
4. Further, Penina Kadzo Kahindi stated;
" ... That I then took my son to the Nyumba Kumi manager and explained to him what had happened and he again accompanied me to the village elder''s office whereby upon arrival I explained myself and the village elder told me to report the matter to the police. That I accompanied my son to Mbungoni Police Post and reported the matter which was recorded in the occurrence book vide OB 16/24/01/24.”
5. Further, Cynthia Nekesa, the investigating officer, stated in her witness statement dated 29 January 2024, in support of the charge as follows:
"...she noticed the minors short trouser was loose and she took him to her room and started questioning him but he did not tell her anything. That she then took a wire and started beating the minor and that’s when he revealed to her... "
6. According to the petitioner, it is clear from these statements that the minor did not divulge any information willingly and that the same was only done after torture, cruel and degrading punishment by the use of a phone charger cable. It is the the torture that led to the divulging of the information, which in turn formed the basis of the Complaint registered in the occurrence book as no. OB/16/24/01.
7. The petitioner has been informed by his learned counsel, which information he believes to be true, that evidence obtained in a manner that violates the Bill of Rights is inadmissible. To be precise, the said right is covered under Article 50 (4) as read together with Article 25 (a) and (c) of the Constitution and that it is an absolute right.
8. The rest of the affidavit is largely made up of statements of law and, to a greater degree, the petitioner’s legal argument which are replicated in the submissions. And it is to these submissions that I now turn since the respondents neither filed any response to the petition nor any written submissions.
9. To begin with, I note that the petitioner has dedicated a substantial part of his submissions on the constitutional right against torture, and in particular the rights of the minor whom he is alleged to have assaulted and who is the complainant in the criminal case against him. A casual observer, reading these submissions, would be excused for taking the petition as the minor’s quest for his constitutional rights against his mother.
10. In this regard, the petitioner has cited several international instruments against torture and which apply to this country by dint of article 2(6) of the Constitution. These instruments include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits torture, cruel, inhuman or degrading treatment or punishment.
11. The reason the petitioner has taken this path has been explained as follows:
“We submit that it is illogical to hold that illegal, coercive conduct is less offensive when directed at a non-accused rather than an accused or perpetuated by the police or common mwananchi. If anything, using coercive tactics on a non- accused is even more offensive, since a non-accused is not being charged with any criminal misconduct.”
12. But, of course, there is the angle of admission of evidence that has been unlawfully obtained by means such as torture. To this end, the learned counsel for the petitioner commenced his submissions by quoting a passage in the United States Supreme case of Rochin vs. California 342 US 165 (1952) in which the court is said to have held that use of involuntary verbal confessions in state criminal trials is constitutionally obnoxious not only because of their unreliability but also because they are inadmissible under the due process clause despite the fact that statements contained in them may be independently established as true.
13. The learned counsel also invoked “The Principles and Guidelines on the Right to a Fair Trial and Legal assistance in Africa”, adopted in 2003 by the African Commission on Human and Peoples'' Rights in Luanda which Kenya is stated to have ratified on 23 January 1992. According to section N(6)(d)(I) of those Guidelines, they are said to be to the effect that:
"any confession or other evidence obtained by any form of coercion or force may not be admitted as evidence or considered as probative of any fact at trial or in sentencing".
14. The South African case of S v Tandwa & Others 2008 (1) SACR 613 (SCA) has been cited where the Supreme Court of Appeal of South Africa is said to have held that:
"the admission of derivative evidence obtained in circumstances involving some form of compulsion, or as a result of torture, however relevant and vital for ascertaining the truth, would be undeniably detrimental to the administration of justice"
15. On the same point, remarks of Lord Cooke in R v Bedwellty Justices ex parte Williams [1997] AC 225, have been adopted. In that case, the House of Lords is said to have quashed a magistrate''s decision to commit a defendant to a trial based on inadmissible evidence. Lord Cooke is said to have held that:
" ...To convict or commit for trial without any admissible evidence of guilt is to fall into an error of law."
16. In support of the submission that the powers of the Director of Public Prosecutions can be questioned in this Honourable Court, Mrima, J. has been quoted in Maina & 4 others v Director of Public Prosecutions & 4 others (Constitutional Petition E106 & 160 of 2021 (Consolidated)) [2022] KEHC 15 (KLR) where the learned judge is said to have held that:
“...To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this court would be an abhorrent affront to judicial conscience and above all, the Constitution itself…”
17. On her part, Lady Justice Mumbi Ngugi, J. (as she then was), is said to have held that there is need to maintain a balance between the necessity for prosecution in a democratic society and the need to protect the fundamental rights and freedoms of the individual in Kipoki Oreu Tasur v Inspector General of Police & 5 others (2014) e.KLR. In that case, the learned judge is said to have held that:
"The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated ..."
18. While relying on the United States Court of Appeals, First Circuit in LaFrance v. Bohlinger, 499 F.2d at 34, it has also been submitted on behalf of the petitioner that a coerced statement from non-accused cannot logically be viewed as any more reliable than one obtained from an accused. In that case, the court is said to have held that a coerced statement made by an accused should be excluded due to its inherent unreliability. Similarly, one cannot logically allow a coerced statement from a non-accused, which is clearly just as presumptively unreliable.
19. It has been urged that coercive methods of obtaining evidence which are deemed offensive when used against an accused do not become less so when those methods are employed against a non accused. On the same point, the petitioner has cited the case of the United States v. Merkt, 764 F.2d 266, 274 (5th Cir. 1985) which is said to have held that introducing statements made by non-accused as the result of "coercion or inquisitional tactics" violates an accused''s right to a fair trial.
20. As to why the violation of the complainant’s rights are relevant to the petitioner’s petition, it has been submitted that the relevant question is whether the violation of the rights of another affected the accused''s own constitutional right to due process and a fair trial. It has been urged that the right to fair trial is a cornerstone of a just and democratic society without which the rule of law and public faith in the justice system would inevitably collapse.
21. On this question for fair trial, the petitioner has relied on the Universal Declaration of Human Rights in particular, Article 10 thereof which states that the right to a fair trial is inalienable and Joseph Ndungu Kagiri v Republic [2016] eKLR and Francis Karioko Muruatetu & another v Republic [2017] eKLR, where the same point was reiterated, have been cited.
22. In summary, the petitioner’s case is that torture, cruel, inhuman and degrading treatment or punishment is not, and should not be considered a proper method of obtaining evidence against an accused. It is further urged that a party cannot be told to await the outcome of a flawed process and thereafter appeal. On this point, counsel cited Reliance Bank Ltd v Norlake Investments Ltd (2002) E.A. 227, where the the Court is said to have held:
''''To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined."
23. According to the petitioner, the complainant''s mother acted intentionally to threaten, intimidate, or coerce an involuntary statement from the complainant; that the complainant did not give the statement freely and willingly and, that the statement was given after compulsion, coercion, torture, cruel, inhuman and degrading treatment or punishment.
24. The learned counsel for the petitioner has also submitted that article 25 (a) of the Constitution absolutely prohibits torture and cruel, inhuman or degrading treatment or punishment and that sub-article (c) makes the right to a fair trial non-derogable. Article 50 (4), on the other hand, prohibits the inclusion of evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights.
25. According to the petitioner’s counsel, all other evidence, besides the statement from the complainant’s mother, “are fruits of a poisonous tree” as the basis and initiation of the prosecution is compulsion, torture, cruel, inhuman and degrading treatment or punishment.
26. Turning to article 50(4) of the Constitution, which is the constitutional basis of the petitioner’s claim, the petitioner has urged that the evidence against him, to the extent that it is a product of “a poisonous tree” should be excluded in its entirety in the trial against him. To prosecute the petitioner on this evidence, it is urged, would be in violation of his constitutional rights under articles 54 and 25(a) and (c) of the Constitution.
27. As far as the task for this Honourable Court is concerned, it has been urged that the Court has a constitutional role, as the bulwark of liberty and the rule of law, to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry, of their fundamental rights and freedoms. In interpreting the Constitution, the court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry.
28. It is further urged that although the state''s interest and indeed the constitutional and statutory powers to prosecute is recognized, the Director of Public Prosecutions must, in exercise of these powers, act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy in breach of the recognized lawful parameters. This Honourable Court, it is submitted, ought to and will interfere with a criminal trial in the subordinate court if it is determined that the prosecution is, inter alia, in breach of the constitutional safeguards.
29. As far as the magistrate’s court’s powers to determine the issues in this petition are concerned, the learned counsel for the petitioner has urged that the Constitutional issues raised in the petition cannot be ventilated in the Magistrates Court because section 8 of the Magistrates Court Act, cap. 10 deprives them of that jurisdiction. This section reads as follows:
8. Claims relating to violation of human rights
(1) Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate''s court shall have jurisdiction 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.
(2) The applications contemplated in subsection (1) shall only relate to the rights guaranteed in Article 25(a) and (b) of the Constitution.
(3) Nothing in this Act may be construed as conferring jurisdiction on a magistrate''s court to hear and determine claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights.
30. According to the petitioner, based on this provision of the law, the magistrates court cannot deal with the issues raised in this petition. Accordingly, it is only this Honourable Court that is well disposed to deliberate on the issues as mandated by article 165 (3)(b), (d)(ii),6 & 7 of the Constitution.
31. For all that has been submitted on behalf of the petitioner, it is rather obvious that the petitioner’s petition is anchored on Article 50 (4) of the Constitution which is to the effect that:
“… Evidence obtained in a manner that violates any rights in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”
32. Looked at in its entirety, Article 50 on the right to a fair hearing or a fair trial (in the case of a criminal trial) presupposes that as far as a criminal trial is concerned, there is in existence such a trial. It is for this reason that Article 50(2) speaks of “every accused person” having a right to a fair trial.
A person attains the status of an “accused person” once he has been charged and, once in that position, he is entitled to the rights enumerated in Article 50.
33. Narrowing down to Article 50(4) of the Constitution, the obligation to guard against evidence obtained as a result of violation of any person’s right or fundamental freedom in the Bill of Rights arises in the context of a trial. This is because article 50(4) is clear that such evidence shall be “excluded”. It is logical, as much as it is legal, that the evidence can only be “excluded” in a trial; in other words, there must be a trial before evidence can be excluded for, without a trial, there will be nothing from which to exclude the evidence.
34. For the avoidance of doubt that Article 50(4) presupposes a trial, this provision goes further to say, that the evidence is excluded if its admission would render “the trial” unfair. The definite article “the” leaves no doubt there is a pre-existing trial from which the evidence obtained in violation of one’s constitutional rights ought to be excluded.
35. With due respect to the learned counsel for the petitioner and deference to the rather lengthy submissions made on petitioner’s behalf, all I understand article 50(4) of the Constitution to mean is that, a trial is not rendered unconstitutional merely because certain evidence produced or proposed to be produced by the prosecution is alleged to have been obtained in violation of the rights and fundamental freedoms guaranteed in the Constitution.
36. A trial court faced with such evidence has the obligation of excluding it if, in the court’s opinion, the admission of that evidence would render the trial unfair or would otherwise be detrimental to administration of justice.
37. The evidence sought to be presented at the petitioner’s trial which the petitioner is aggrieved by and which provoked this petition is a statement by the complainant’s mother. The excerpts of that statement have been produced earlier in this judgment. But looking at the copy of the charge sheet, a copy of which has been exhibited to the affidavit in support of the petition, it is apparent that apart from the mother of the minor who is alleged to have been assaulted, there are other witnesses whose evidence may be pivotal in the determination of the question whether or not the case against the petitioner, is prima facie, as to call upon him to defendant himself or, has been proved beyond a reasonable doubt, at the conclusion of the trial.
38. It will be up to the trial court to weigh such evidence and determine whether, on its own, assuming it excludes evidence of the minor’s mother, is sufficient to hold the petitioner accountable and convict him accordingly.
39. The submission by the learned counsel for the petitioner that the magistrate’s court is indisposed to deal with the questions raised in this petition is an answer to a question that, in my humble view, has not been asked. It is, of course, not in dispute that according to article 165 (3) (b) of the Constitution, the jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened is exclusive to this Honourable Court. The Court has also the jurisdiction to determine other questions relating to the Constitution under article 165(3)(d) but of concern to the Court, and for the purpose of answering the petitioner, article 165(3)(b) would suffice. This provision could properly be understood in the context of the entire article 165 of the Constitution and, for this reason, it is necessary that I reproduce it here:
165. High Court
(1) There is established the High Court, which—
(a)shall consist of the number of judges prescribed by an Act of Parliament; and
(b)shall be organised and administered in the manner prescribed by an Act of Parliament.
(2) There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.
(3) 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. (Emphasis added).
40. The jurisdiction exclusively conferred to this Honourable Court cannot be shared by any other court, including the magistrates’ court. However, Section 8 of the Magistrates Court Act appears to deviate from this provision to the extent that it purports to delegate some of the jurisdiction conferred to this Honourable Court to the magistrates’ court. To illustrate my point, it is necessary that I reproduce the section here; it reads as follows:
8. Claims relating to violation of human rights
(1)Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate''s court shall have jurisdiction 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.
(2) The applications contemplated in subsection (1) shall only relate to the rights guaranteed in Article 25(a) and (b) of the Constitution.
(3) Nothing in this Act may be construed as conferring jurisdiction on a magistrate''s court to hear and determine claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights.
(4) The Chief Justice shall make Rules for the better exercise of jurisdiction of the magistrate''s courts under this section.
41. According to section 8(1) as read with subsection (2), the Magistrates Court may hear and determine applications relating to rights guaranteed in article 25(a) and (b). This particular article reads as follows:
25. Fundamental Rights and freedoms that may not be limited
Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—
(a)freedom from torture and cruel, inhuman or degrading treatment or punishment;
(b)freedom from slavery or servitude;
(c)the right to a fair trial; and
(d)the right to an order of habeas corpus.
42. If this Honourable Court has exclusive jurisdiction to “determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened” including the fundamental rights and freedoms under article 25 of the Constitution, I doubt that section 8 of the Magistrates Court Act is of much consequence to the extent that it is purporting to donate to the magistrates’ court the jurisdiction conferred to the High Court by the supreme law which is the Constitution. But I say that only in passing because that is not the question I have been asked to answer.
43. For purposes of determination of the petition before me, I would say that a more practical interpretation of this section is, if in the process of a trial or a criminal prosecution, as appears to be the case in the petitioner’s trial, a question arises as to the rights of an accused under article 25(a) and (b) of the Constitution, then the trial court is competent to deal with that question, among other questions that may arise and which warrant the court’s attention and determination.
44. If section 8 of the Act can be applied in its present form, and it is assumed that the magistrates’ court can entertain a constitutional petition in pursuit of the fundamental rights and freedoms under article 25 (a) and (b) of the Constitution, independent of any criminal proceedings, the petitioner’s argument that the magistrates’ court cannot dispose such constitutional issues as freedom from torture and cruel, inhuman or degrading treatment or punishment which, to a greater degree, form the foundation of his petition, is inconsistent with this provision of the law.
45. But the fundamental question, in my humble view, is not whether the magistrates’ court can handle any sort of petition for agitation of constitutional rights; regardless of whether it is a petition for enforcement of the constitutional rights under article 25 (a) and (b), in particular. The appropriate and material question, in the circumstances of the petitioner’s case, is whether, under article 50(4) of the Constitution, the magistrates’ court can consider whether the evidence with which it has been presented in the prosecution of the petitioner, was obtained in a manner that violates any right or fundamental freedom in the Bill of rights.
46. I hasten to answer this question in the affirmative. The answer is in the affirmative because it would be absurd to assume or interpret section 50(4) of the Constitution to mean that every time a question is raised in a criminal trial in the magistrates’ court on whether the prosecution evidence was obtained in a manner that violates any right or fundamental freedom in the Bill of Rights, this Honourable Court has to intervene for an appropriate answer.
47. The point I am making is this: for purposes of strictly determining the question whether certain evidence should be excluded from a criminal trial, a trial court, which in this case is the magistrates’ court, is competent to determine the question whether, under article 50(4) of the Constitution, such evidence was obtained in violation of any right or fundamental freedom in the Bill of Rights.
48. In considering whether the evidence before it is admissible under article 50(4) of the Constitution, the trial court is not, thereby, considering an application for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights as contemplated in Article 22(1) or Article 23(2) of the Constitution or Section 8 of the Magistrates Court Act. Neither is the court assuming the jurisdiction of this Honourable Court under article 165 (3) of the Constitution. The trial court is simply considering whether the evidence sought to be admitted should, instead, be excluded for being tainted in the manner described by article 50(4) of the Constitution.
49. In conclusion, I need reiterate that section 8 of the Magistrates Court Act is subject to Article 50 (4) of the Constitution. And in the current scheme of things, article 25(a) and (b) cannot, and ought not to be read to mean that, merely because a magistrates’ court is restricted to entertaining applications or petitions for enforcement of rights and fundamental freedoms under that provision of the Constitution, it cannot consider the legality of evidence sought to be produced in a trial on the scales of article 50(4) of the Constitution. An application for enforcement of the constitutional rights under article 25(a) and (b) of the Constitution, or any other provision thereof, must be distinguished from examination of the probity or validity of the prosecution evidence on the standards of article 50(4) of the Constitution.
50. For the foregoing reasons, I do not find any merit in the petitioner’s petition. The petition is hereby dismissed. I make no orders as to costs. Orders accordingly.
Signed, dated and delivered on 15 August 2025
'
“1) A declaration that the actions of the Respondents to charge, prosecute and sustain the charges of attempted defilement contrary to section 9 (1) as read with 9(2) of the Sexual offences Act No. 3 of 2006 and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 as against the Petitioner in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi is unconstitutional and in contravention of Articles 50(4) as read with Articles 25 (a) and (c) of the Constitution of Kenya, 2010.
2) An order of certiorari do (sic) issue to remove into this court and to quash the decision of the Respondents to charge, prosecute and sustain the charges of attempted defilement contrary to section 9 (1) as read with 9(2) of the Sexual offences Act No. 3 of 2006 and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 as against the Petitioner in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi.
3) An order of certiorari do (sic) issue to remove into this court and to quash the entire proceedings in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi.
4) An order of certiorari do(sic) issue to remove into this court and to quash the decision on cash bail and bond terms against the Petitioner in the Chief Magistrate court at Shanzu, MCSO/E014/2024 Republic VS Fredrick Onditi.
5) An order of prohibition do (sic) issue against the Respondents from charging, prosecuting and sustaining the charges of attempted defilement contrary to section 9 (1) as read with 9(2) of the Sexual offences Act No. 3 of 2006 and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 as against the Petitioner in the Chief Magistrate court atShanzu, MCSO/E014/2024 Republic VS Fredrick Onditi premised on the same facts levelled by the complainant.
6) That this honourable court be pleased to award to the Petitioner damages for violations of his constitutional rights under articles 19, 21, 25, 29, 50,157 and 244 of the Constitution of Kenya, by the Respondents.
7) Costs of this petition.”
2. The petition is supported by the affidavit of the petitioner himself sworn on 2 June 2024. The petitioner has sworn that he is an adult male and that on or around 30 January 2024, he was charged with the offences of attempted defilement contrary to section 9 (1) as read with Section 9 (2) of the Sexual offences Act no. 3 of 2006, and committing an indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006 in the Chief Magistrate court at Shanzu, MCSO/E014/2024; Republic VS Fredrick Onditi.
3. In support of the charge, Peninah Kadzo Kahindi, the complainant’s mother, stated in her witness statement as follows:
" ... then, after sometime Ryan came outside and his trouser short was loose and the short straps had been cut and they were hanging. That I then took my son inside the room and interrogated him since I was shocked seeing his shorts loose. That, as I was interrogating my son he became reluctant to speak and I took the phone charger wire and started beating him and that''s when he opened up..."
4. Further, Penina Kadzo Kahindi stated;
" ... That I then took my son to the Nyumba Kumi manager and explained to him what had happened and he again accompanied me to the village elder''s office whereby upon arrival I explained myself and the village elder told me to report the matter to the police. That I accompanied my son to Mbungoni Police Post and reported the matter which was recorded in the occurrence book vide OB 16/24/01/24.”
5. Further, Cynthia Nekesa, the investigating officer, stated in her witness statement dated 29 January 2024, in support of the charge as follows:
"...she noticed the minors short trouser was loose and she took him to her room and started questioning him but he did not tell her anything. That she then took a wire and started beating the minor and that’s when he revealed to her... "
6. According to the petitioner, it is clear from these statements that the minor did not divulge any information willingly and that the same was only done after torture, cruel and degrading punishment by the use of a phone charger cable. It is the the torture that led to the divulging of the information, which in turn formed the basis of the Complaint registered in the occurrence book as no. OB/16/24/01.
7. The petitioner has been informed by his learned counsel, which information he believes to be true, that evidence obtained in a manner that violates the Bill of Rights is inadmissible. To be precise, the said right is covered under Article 50 (4) as read together with Article 25 (a) and (c) of the Constitution and that it is an absolute right.
8. The rest of the affidavit is largely made up of statements of law and, to a greater degree, the petitioner’s legal argument which are replicated in the submissions. And it is to these submissions that I now turn since the respondents neither filed any response to the petition nor any written submissions.
9. To begin with, I note that the petitioner has dedicated a substantial part of his submissions on the constitutional right against torture, and in particular the rights of the minor whom he is alleged to have assaulted and who is the complainant in the criminal case against him. A casual observer, reading these submissions, would be excused for taking the petition as the minor’s quest for his constitutional rights against his mother.
10. In this regard, the petitioner has cited several international instruments against torture and which apply to this country by dint of article 2(6) of the Constitution. These instruments include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits torture, cruel, inhuman or degrading treatment or punishment.
11. The reason the petitioner has taken this path has been explained as follows:
“We submit that it is illogical to hold that illegal, coercive conduct is less offensive when directed at a non-accused rather than an accused or perpetuated by the police or common mwananchi. If anything, using coercive tactics on a non- accused is even more offensive, since a non-accused is not being charged with any criminal misconduct.”
12. But, of course, there is the angle of admission of evidence that has been unlawfully obtained by means such as torture. To this end, the learned counsel for the petitioner commenced his submissions by quoting a passage in the United States Supreme case of Rochin vs. California 342 US 165 (1952) in which the court is said to have held that use of involuntary verbal confessions in state criminal trials is constitutionally obnoxious not only because of their unreliability but also because they are inadmissible under the due process clause despite the fact that statements contained in them may be independently established as true.
13. The learned counsel also invoked “The Principles and Guidelines on the Right to a Fair Trial and Legal assistance in Africa”, adopted in 2003 by the African Commission on Human and Peoples'' Rights in Luanda which Kenya is stated to have ratified on 23 January 1992. According to section N(6)(d)(I) of those Guidelines, they are said to be to the effect that:
"any confession or other evidence obtained by any form of coercion or force may not be admitted as evidence or considered as probative of any fact at trial or in sentencing".
14. The South African case of S v Tandwa & Others 2008 (1) SACR 613 (SCA) has been cited where the Supreme Court of Appeal of South Africa is said to have held that:
"the admission of derivative evidence obtained in circumstances involving some form of compulsion, or as a result of torture, however relevant and vital for ascertaining the truth, would be undeniably detrimental to the administration of justice"
15. On the same point, remarks of Lord Cooke in R v Bedwellty Justices ex parte Williams [1997] AC 225, have been adopted. In that case, the House of Lords is said to have quashed a magistrate''s decision to commit a defendant to a trial based on inadmissible evidence. Lord Cooke is said to have held that:
" ...To convict or commit for trial without any admissible evidence of guilt is to fall into an error of law."
16. In support of the submission that the powers of the Director of Public Prosecutions can be questioned in this Honourable Court, Mrima, J. has been quoted in Maina & 4 others v Director of Public Prosecutions & 4 others (Constitutional Petition E106 & 160 of 2021 (Consolidated)) [2022] KEHC 15 (KLR) where the learned judge is said to have held that:
“...To hold that the discretion given to the DPP to prefer charges ought not to be questioned by this court would be an abhorrent affront to judicial conscience and above all, the Constitution itself…”
17. On her part, Lady Justice Mumbi Ngugi, J. (as she then was), is said to have held that there is need to maintain a balance between the necessity for prosecution in a democratic society and the need to protect the fundamental rights and freedoms of the individual in Kipoki Oreu Tasur v Inspector General of Police & 5 others (2014) e.KLR. In that case, the learned judge is said to have held that:
"The criminal justice system is a critical pillar of our society. It is underpinned by the Constitution, and its proper functioning is at the core of the rule of law and administration of justice. It is imperative, in order to strengthen the rule of law and good order in society, that it be allowed to function as it should, with no interference from any quarter, or restraint from the superior courts, except in the clearest of circumstances in which violation of the fundamental rights of individuals facing trial is demonstrated ..."
18. While relying on the United States Court of Appeals, First Circuit in LaFrance v. Bohlinger, 499 F.2d at 34, it has also been submitted on behalf of the petitioner that a coerced statement from non-accused cannot logically be viewed as any more reliable than one obtained from an accused. In that case, the court is said to have held that a coerced statement made by an accused should be excluded due to its inherent unreliability. Similarly, one cannot logically allow a coerced statement from a non-accused, which is clearly just as presumptively unreliable.
19. It has been urged that coercive methods of obtaining evidence which are deemed offensive when used against an accused do not become less so when those methods are employed against a non accused. On the same point, the petitioner has cited the case of the United States v. Merkt, 764 F.2d 266, 274 (5th Cir. 1985) which is said to have held that introducing statements made by non-accused as the result of "coercion or inquisitional tactics" violates an accused''s right to a fair trial.
20. As to why the violation of the complainant’s rights are relevant to the petitioner’s petition, it has been submitted that the relevant question is whether the violation of the rights of another affected the accused''s own constitutional right to due process and a fair trial. It has been urged that the right to fair trial is a cornerstone of a just and democratic society without which the rule of law and public faith in the justice system would inevitably collapse.
21. On this question for fair trial, the petitioner has relied on the Universal Declaration of Human Rights in particular, Article 10 thereof which states that the right to a fair trial is inalienable and Joseph Ndungu Kagiri v Republic [2016] eKLR and Francis Karioko Muruatetu & another v Republic [2017] eKLR, where the same point was reiterated, have been cited.
22. In summary, the petitioner’s case is that torture, cruel, inhuman and degrading treatment or punishment is not, and should not be considered a proper method of obtaining evidence against an accused. It is further urged that a party cannot be told to await the outcome of a flawed process and thereafter appeal. On this point, counsel cited Reliance Bank Ltd v Norlake Investments Ltd (2002) E.A. 227, where the the Court is said to have held:
''''To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined."
23. According to the petitioner, the complainant''s mother acted intentionally to threaten, intimidate, or coerce an involuntary statement from the complainant; that the complainant did not give the statement freely and willingly and, that the statement was given after compulsion, coercion, torture, cruel, inhuman and degrading treatment or punishment.
24. The learned counsel for the petitioner has also submitted that article 25 (a) of the Constitution absolutely prohibits torture and cruel, inhuman or degrading treatment or punishment and that sub-article (c) makes the right to a fair trial non-derogable. Article 50 (4), on the other hand, prohibits the inclusion of evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights.
25. According to the petitioner’s counsel, all other evidence, besides the statement from the complainant’s mother, “are fruits of a poisonous tree” as the basis and initiation of the prosecution is compulsion, torture, cruel, inhuman and degrading treatment or punishment.
26. Turning to article 50(4) of the Constitution, which is the constitutional basis of the petitioner’s claim, the petitioner has urged that the evidence against him, to the extent that it is a product of “a poisonous tree” should be excluded in its entirety in the trial against him. To prosecute the petitioner on this evidence, it is urged, would be in violation of his constitutional rights under articles 54 and 25(a) and (c) of the Constitution.
27. As far as the task for this Honourable Court is concerned, it has been urged that the Court has a constitutional role, as the bulwark of liberty and the rule of law, to interpret the Constitution and to ensure, through enforcement, enjoyment by the citizenry, of their fundamental rights and freedoms. In interpreting the Constitution, the court must uphold and give effect to the letter and spirit of the Constitution, always ensuring that the interpretation is in tandem with aspirations of the citizenry.
28. It is further urged that although the state''s interest and indeed the constitutional and statutory powers to prosecute is recognized, the Director of Public Prosecutions must, in exercise of these powers, act with caution and ensure that he does not put the freedoms and rights of the individual in jeopardy in breach of the recognized lawful parameters. This Honourable Court, it is submitted, ought to and will interfere with a criminal trial in the subordinate court if it is determined that the prosecution is, inter alia, in breach of the constitutional safeguards.
29. As far as the magistrate’s court’s powers to determine the issues in this petition are concerned, the learned counsel for the petitioner has urged that the Constitutional issues raised in the petition cannot be ventilated in the Magistrates Court because section 8 of the Magistrates Court Act, cap. 10 deprives them of that jurisdiction. This section reads as follows:
8. Claims relating to violation of human rights
(1) Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate''s court shall have jurisdiction 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.
(2) The applications contemplated in subsection (1) shall only relate to the rights guaranteed in Article 25(a) and (b) of the Constitution.
(3) Nothing in this Act may be construed as conferring jurisdiction on a magistrate''s court to hear and determine claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights.
30. According to the petitioner, based on this provision of the law, the magistrates court cannot deal with the issues raised in this petition. Accordingly, it is only this Honourable Court that is well disposed to deliberate on the issues as mandated by article 165 (3)(b), (d)(ii),6 & 7 of the Constitution.
31. For all that has been submitted on behalf of the petitioner, it is rather obvious that the petitioner’s petition is anchored on Article 50 (4) of the Constitution which is to the effect that:
“… Evidence obtained in a manner that violates any rights in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.”
32. Looked at in its entirety, Article 50 on the right to a fair hearing or a fair trial (in the case of a criminal trial) presupposes that as far as a criminal trial is concerned, there is in existence such a trial. It is for this reason that Article 50(2) speaks of “every accused person” having a right to a fair trial.
A person attains the status of an “accused person” once he has been charged and, once in that position, he is entitled to the rights enumerated in Article 50.
33. Narrowing down to Article 50(4) of the Constitution, the obligation to guard against evidence obtained as a result of violation of any person’s right or fundamental freedom in the Bill of Rights arises in the context of a trial. This is because article 50(4) is clear that such evidence shall be “excluded”. It is logical, as much as it is legal, that the evidence can only be “excluded” in a trial; in other words, there must be a trial before evidence can be excluded for, without a trial, there will be nothing from which to exclude the evidence.
34. For the avoidance of doubt that Article 50(4) presupposes a trial, this provision goes further to say, that the evidence is excluded if its admission would render “the trial” unfair. The definite article “the” leaves no doubt there is a pre-existing trial from which the evidence obtained in violation of one’s constitutional rights ought to be excluded.
35. With due respect to the learned counsel for the petitioner and deference to the rather lengthy submissions made on petitioner’s behalf, all I understand article 50(4) of the Constitution to mean is that, a trial is not rendered unconstitutional merely because certain evidence produced or proposed to be produced by the prosecution is alleged to have been obtained in violation of the rights and fundamental freedoms guaranteed in the Constitution.
36. A trial court faced with such evidence has the obligation of excluding it if, in the court’s opinion, the admission of that evidence would render the trial unfair or would otherwise be detrimental to administration of justice.
37. The evidence sought to be presented at the petitioner’s trial which the petitioner is aggrieved by and which provoked this petition is a statement by the complainant’s mother. The excerpts of that statement have been produced earlier in this judgment. But looking at the copy of the charge sheet, a copy of which has been exhibited to the affidavit in support of the petition, it is apparent that apart from the mother of the minor who is alleged to have been assaulted, there are other witnesses whose evidence may be pivotal in the determination of the question whether or not the case against the petitioner, is prima facie, as to call upon him to defendant himself or, has been proved beyond a reasonable doubt, at the conclusion of the trial.
38. It will be up to the trial court to weigh such evidence and determine whether, on its own, assuming it excludes evidence of the minor’s mother, is sufficient to hold the petitioner accountable and convict him accordingly.
39. The submission by the learned counsel for the petitioner that the magistrate’s court is indisposed to deal with the questions raised in this petition is an answer to a question that, in my humble view, has not been asked. It is, of course, not in dispute that according to article 165 (3) (b) of the Constitution, the jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened is exclusive to this Honourable Court. The Court has also the jurisdiction to determine other questions relating to the Constitution under article 165(3)(d) but of concern to the Court, and for the purpose of answering the petitioner, article 165(3)(b) would suffice. This provision could properly be understood in the context of the entire article 165 of the Constitution and, for this reason, it is necessary that I reproduce it here:
165. High Court
(1) There is established the High Court, which—
(a)shall consist of the number of judges prescribed by an Act of Parliament; and
(b)shall be organised and administered in the manner prescribed by an Act of Parliament.
(2) There shall be a Principal Judge of the High Court, who shall be elected by the judges of the High Court from among themselves.
(3) 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. (Emphasis added).
40. The jurisdiction exclusively conferred to this Honourable Court cannot be shared by any other court, including the magistrates’ court. However, Section 8 of the Magistrates Court Act appears to deviate from this provision to the extent that it purports to delegate some of the jurisdiction conferred to this Honourable Court to the magistrates’ court. To illustrate my point, it is necessary that I reproduce the section here; it reads as follows:
8. Claims relating to violation of human rights
(1)Subject to Article 165(3)(b) of the Constitution and the pecuniary limitations set out in section 7(1), a magistrate''s court shall have jurisdiction 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.
(2) The applications contemplated in subsection (1) shall only relate to the rights guaranteed in Article 25(a) and (b) of the Constitution.
(3) Nothing in this Act may be construed as conferring jurisdiction on a magistrate''s court to hear and determine claims for compensation for loss or damage suffered in consequence of a violation, infringement, denial of a right or fundamental freedom in the Bill of Rights.
(4) The Chief Justice shall make Rules for the better exercise of jurisdiction of the magistrate''s courts under this section.
41. According to section 8(1) as read with subsection (2), the Magistrates Court may hear and determine applications relating to rights guaranteed in article 25(a) and (b). This particular article reads as follows:
25. Fundamental Rights and freedoms that may not be limited
Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—
(a)freedom from torture and cruel, inhuman or degrading treatment or punishment;
(b)freedom from slavery or servitude;
(c)the right to a fair trial; and
(d)the right to an order of habeas corpus.
42. If this Honourable Court has exclusive jurisdiction to “determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened” including the fundamental rights and freedoms under article 25 of the Constitution, I doubt that section 8 of the Magistrates Court Act is of much consequence to the extent that it is purporting to donate to the magistrates’ court the jurisdiction conferred to the High Court by the supreme law which is the Constitution. But I say that only in passing because that is not the question I have been asked to answer.
43. For purposes of determination of the petition before me, I would say that a more practical interpretation of this section is, if in the process of a trial or a criminal prosecution, as appears to be the case in the petitioner’s trial, a question arises as to the rights of an accused under article 25(a) and (b) of the Constitution, then the trial court is competent to deal with that question, among other questions that may arise and which warrant the court’s attention and determination.
44. If section 8 of the Act can be applied in its present form, and it is assumed that the magistrates’ court can entertain a constitutional petition in pursuit of the fundamental rights and freedoms under article 25 (a) and (b) of the Constitution, independent of any criminal proceedings, the petitioner’s argument that the magistrates’ court cannot dispose such constitutional issues as freedom from torture and cruel, inhuman or degrading treatment or punishment which, to a greater degree, form the foundation of his petition, is inconsistent with this provision of the law.
45. But the fundamental question, in my humble view, is not whether the magistrates’ court can handle any sort of petition for agitation of constitutional rights; regardless of whether it is a petition for enforcement of the constitutional rights under article 25 (a) and (b), in particular. The appropriate and material question, in the circumstances of the petitioner’s case, is whether, under article 50(4) of the Constitution, the magistrates’ court can consider whether the evidence with which it has been presented in the prosecution of the petitioner, was obtained in a manner that violates any right or fundamental freedom in the Bill of rights.
46. I hasten to answer this question in the affirmative. The answer is in the affirmative because it would be absurd to assume or interpret section 50(4) of the Constitution to mean that every time a question is raised in a criminal trial in the magistrates’ court on whether the prosecution evidence was obtained in a manner that violates any right or fundamental freedom in the Bill of Rights, this Honourable Court has to intervene for an appropriate answer.
47. The point I am making is this: for purposes of strictly determining the question whether certain evidence should be excluded from a criminal trial, a trial court, which in this case is the magistrates’ court, is competent to determine the question whether, under article 50(4) of the Constitution, such evidence was obtained in violation of any right or fundamental freedom in the Bill of Rights.
48. In considering whether the evidence before it is admissible under article 50(4) of the Constitution, the trial court is not, thereby, considering an application for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights as contemplated in Article 22(1) or Article 23(2) of the Constitution or Section 8 of the Magistrates Court Act. Neither is the court assuming the jurisdiction of this Honourable Court under article 165 (3) of the Constitution. The trial court is simply considering whether the evidence sought to be admitted should, instead, be excluded for being tainted in the manner described by article 50(4) of the Constitution.
49. In conclusion, I need reiterate that section 8 of the Magistrates Court Act is subject to Article 50 (4) of the Constitution. And in the current scheme of things, article 25(a) and (b) cannot, and ought not to be read to mean that, merely because a magistrates’ court is restricted to entertaining applications or petitions for enforcement of rights and fundamental freedoms under that provision of the Constitution, it cannot consider the legality of evidence sought to be produced in a trial on the scales of article 50(4) of the Constitution. An application for enforcement of the constitutional rights under article 25(a) and (b) of the Constitution, or any other provision thereof, must be distinguished from examination of the probity or validity of the prosecution evidence on the standards of article 50(4) of the Constitution.
50. For the foregoing reasons, I do not find any merit in the petitioner’s petition. The petition is hereby dismissed. I make no orders as to costs. Orders accordingly.
Signed, dated and delivered on 15 August 2025
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