'1. Jeremiah Nyambogo Omolo is the Petitioner herein. He alleges violation of
his constitutional rights to equal protection and equal benefit of the law and
fair administrative action as against the five Respondents, being the
Ministry of Interior and Coordination of the National Government, the
Inspector General of the Kenya National Police Service, the Officer
Commanding Police Station Kapsabet Police Station, Sgt. Maurice
Mangoli and the Hon. the Attorney General of the Republic of Kenya.
2. The claim is based on the facts that on the 16
th December 2021 at about
9:00am at the Winam Law Courts in Kisumu the fourth [4
th
] Respondent,
Sgt. Maurice Mangoli, acting on instructions from the rest of the
Respondents called for the remand of the Petitioner at the Kisumu Maximum
Prison to enable investigations on an allegation of forgery made against the
Petitioner vide O/B No. 24 of 24
th September 2020 on ground that the
Petitioner was a flight risk.
3. Accordingly, the Petitioner was held in custody at the Kisumu Maximum
Security Prison where he was forced by the forth Respondent to affix his
signature on a pre-written statement and provide specimen signatures. He
was thereafter informed that one Omar Cheruiyot was responsible for
making the allegation of forgery against him. He was later on the 23
rd
December 2021 arraigned at a Magistrate’s Court in Kapsabet vide Criminal
Case No. E02759 of 2021 for the offences of forgery, making a document
without authority, uttering a false document and making a false document
vide O/B No. 33 of 22
nd December 2021 rather than O/B No. 24 of 24
th
September 2020.
4. The trial ended on the 26
th April 2023 with the acquittal of the Petitioner even
as his employment contract had long been terminated in the month of
December 2021 due to the allegations made against him which subjected
him to both physical and mental torture while held in remand custody. His
family suffered irreparable damage for his loss of a well paying job and being
labelled a criminal on account of a flawed process.
5. The Petition is basically anchored on the Petitioners averments in the
supporting affidavit dated 24
th June 2024 and further affidavit dated 9
th
November 2024. The Petitioner thus seeks orders for compensation and
indemnity from the Respondents for loss of employment together with loss of
salary for the period 16
th December 2021 to 26
th April 2023. He also seeks
damages for malicious prosecution as well as exemplary and punitive
damages against the Respondents jointly and severally in their personal and
official capacities on account of gross violation of his constitutional rights.
6. The Petitioner further prays for declaration orders specifically against the
Fourth Respondent for acting unlawfully and therefore unfit to hold public
office.
Even though the petition was against all the five Respondents jointly and
severally it is apparent that save the Fifth Respondent [Hon. Attorney
General] the remaining Four Respondents were not served with the
Petition. This was a serious omission as each and every Respondent was
entitled to know the complaint against them and be given an opportunity to
be heard before any decision is made against them by the court in keeping
with the principles of natural justice, particularly the principle that no man
shall be condemned unheard.
7. It is notable that the petition was filed on the 25
th June 2024, yet the alleged
unconstitutional acts were committed against the Petitioner in the years
2021/2021 prior to the acquittal of the Petitioner on 26
th April 2023 in
Kapsabet Magistrate’s Court Criminal Case No. E02759 of 2021.
It was obvious that the petition was prompted by the Petitioner’s acquittal.
8. Be that as it may, the need for a constitutional petition such as the present
petition arises when a person believes that a public authority has acted
unlawfully or has violated his/her constitutional rights.
Herein, the Petitioner, alleges that the Respondents individually and
collectively violated his constitutional rights under Articles 27[1] and 47[1]
of the Constitution i.e. Rights to equal protection and equal benefits of the
law as well as to fair administrative action.
9. A constitutional petition therefore serves as one way for holding public
bodies accountable apart from rectifying injustice and ensuring that the
principles enshrined in the constitution are adhered to and upheld. Not
every legal grievance requires remedy through a constitutional petition as it
is mostly based on an alleged violation, threat on infringement of a right of
fundamental freedom protected in the Bill of rights [Chapter four [4] of the
Constitution].
10. The general Rule is that a petition should be filed without an
unreasonable delay depending on the nature and circumstances of each
particular case and once it is filed it must be served on all the specified
Respondents at least within fifteen [15] days and proof of service must be
filed in court. This is indeed the rule of the thumb.
11. In the enforcement of the Bill of Rights, Article 22[1] of the
Constitution provides for the right of every person to institute court
proceedings claiming that a right of fundamental freedom in the Bill of Rights
has been denied, violated or infringed or is threatened. This is exactly what
the Petitioner has done by way of this petition.
The procedural law for purpose of the petition is Legal Notice No. 117 of
2013 i.e. The Constitution of Kenya [Protection of Rights and
Fundamental Freedom] Practice and Procedure Rules 2013.
12. The scope and objectives of the Rules are spelt out in Section 3 of the
Rules and under Section 6 of the Rules, a party to proceedings
commenced under the Rules is obliged to assist the court to further the
overriding objectives of the Rules by participating in the court process and
complying with the direction and order of the court. However, under Section
8 of the Rules, nothing in the Rules limits or otherwise affect the inherent
power of the court to make such orders as may be necessary for the ends of
justice or to prevent abuse the process of the court.
13. Service of petition is provided for under Section 14 of the Rules. The
Petitioner was thus required to serve the Respondent with the petition and
all supporting documents within fifteen [15] days of filing and to prove
service by way of an affidavit of service in the prescribed form.
These are mandatory requirements for which the Petitioner was expected to
comply. Under Rule 15 upon service the Respondents were expected to
Respond to the Petition by way of a replying affidavit within fourteen [14]
days, but for fourth [4] Respondent who was sued in both his official and
personal capacities the response at least within seven [7] days of service.
14. The factors foregoing clearly suggest that the competence and
propriety of this petition on account of time and service would be the first
issue for determination.
In that regard, the alleged violation of the Petitioner’s fundamental rights
occurred while he was being subjected to a criminal justice process
instigated by a complaint of forgery and related matters made against him by
a fellow citizen. This is not disputed even though there was a minor error in
the charge sheet on the relevant O/B reference number.
15. The Criminal Justice Process culminated in the year 2023 with the
acquittal of the Petitioner on the 26
th April of the year. The alleged
unconstitutional acts attributed to the Respondents actually occurred in the
years 2020/2021. It would therefore be construed that there was
unreasonable delay in the filing of the present petition. However, the
constitution did not set a time limit within which a party could file a claim for
violation of constitutional rights [See, Peter N. Kariuki Vs. Attorney
General [2014] eKLR].
In Dominic Arony Amolo Vs. Attorney General [2010] eKLR, the court
held that the element of time cannot be used to protect the state or any
person from claims of enforcement of fundamental rights.
16. It would therefore follow that this petition cannot be invalidated or
rendered improper and incompetence on account of having been filed
belatedly.
With regard to service of the petition, there is proof by way of the affidavit of
services and notices that the petition may have been served upon the Fifth
Respondent [A.G.], but not the rest of the Respondents. This explains why
the fifth Respondent was the only person who Responded to the petition by
way of the replying affidavit dated 5
th November 2024 deponed by a Chief
Inspector Robert Githinji.
17. Considering the mandatory nature of Rule 14 of the Practice and
Procedure Rules, 2013 the failure by the Petitioner to serve the First,
Second, Third and Fourth Respondents with the petition constituted on error
which may be termed fatal because the affected Respondents were unaware
of the claim made against them in which case they were denied the
opportunity to be heard in defence of the claim. And if the matter were to
proceed in their absence and a decision rendered against them, then they
would have been condemned without being heard and that would be
injustice.
18. The Petitioner made a fatal mistake in assuming that service upon the
fifth Respondent translated into service upon all the Respondents. So the
non-service of the petition upon the First, Second, Third and Fourth
Respondent’s rendered it invalid and incompetent against them. The
petition must and is hereby dismissed as against the First, Second, Third
and Fourth Respondents for want of service, but is hereby sustained as
against the Fifth Respondent.
19. In that regard, the Second issue for determination would be whether
the Petitioner has provided sufficient grounds and evidence to establish and
prove the alleged violation of his rights under Articles 27[1] and 47[1] of the
Constitution. As noted hereinabove this petition germinated from or was
prompted or jumpstarted by the Petitioner’s acquittal in a criminal case
brought against him at the Kapsabet Chief Magistrate’s Court, being
Criminal Case No. E2759 of 2021.
20. A copy of the court’s judgment annexed to the Petitioner’s supporting
affidavit dated 24
th June 2024 shows that the Petitioner was subjected to a
full criminal trial which ended in his acquittal after a consideration of the
evidence in its totality by the trial court which stated in conclusion that: -
“Based on the evidence adduced by both parties, the
authorities cited above and the law, I find the accused not
guilty of the offence of forgery Contrary to Section 349 [a] of
the Penal code and not guilty of the offence of making a
document without authority Contrary to Section 357 [a] of
the Penal Code and not guilty of the offence of making a
false document Contrary to Section 367 of the Penal Code.”
21. Clearly, the acquittal arose from a regular and lawful criminal justice
process whose genesis was a complaint made against the Petitioner to the
police.
It cannot be gainsaid that the mandate of the police service extends to
carrying out investigations into suspected criminal acts such as those made
against the Petitioner. Therefore, the investigations carried out on the
complaint or complaints made against the Appellant were lawful in as much
as they led to his arrest and arraignment in a criminal court.
22. The Petitioners’ prosecution was informed by the outcome of the police
investigations, but was conducted by the office of the Director of Public
Prosecution which exercises the states power of prosecution of criminal
cases.
Both the police and the Director of Public Prosecution in the exercise of their
respective mandates are always required to adhere to the provisions of the
constitution to which they are subject to in Particular Chapter Four [4] of
the Constitution i.e. the Bill of Rights.
23. The High Court as the custodian of the Bill of Rights would intervene
where the facts disclose a violation of the right and fundamental freedom
guaranteed under the Constitution.
It was therefore incumbent upon the Petitioner to establish and prove
violation of his constitutional rights under Articles 27 and 47 of the
Constitution during Police Investigations on the complaint made against
him, his arrest and arraignment in court and his prosecution in court prior to
being declared not guilty and acquitted of all the charges by the court.
24. The facts of this case as emerges from the Petitioner’s averments in
the supporting affidavit dated 24
th June 2024 showed that the police and the
office of the director of public prosecution acted within their lawful mandate
in investigating the complaint, arresting and charging the Petitioner with
criminal offences and prosecuting him accordingly. Whether the
investigations were shoddy, inchoate or scanty was a matter to be raised at
the trial and be determined by the trial court. And so, to, whether there is
any violation of the constitutional rights to equal protection and equal benefit
of the Law or to fair administrative action.
25. The fact that the Petitioner was acquitted of all the charges preferred
against him did not impute that the lawful mandates of the investigating and
prosecuting agencies were exercised without adherence to constitutional
principles. There is nothing in the evidence availed by the Petitioner herein
which demonstrated violation of any of the Petitioner’s Constitutional
Rights. The fact that the Petitioner’s Reputation was punctured by being
charged with a criminal offence and being prosecuted for it and the fact that
he lost his job as a result of the Criminal case did not amount to a violation
of the Petitioner’s Constitutional Rights.
26. If anything, the remedy for any damage or loss suffered by the
Petitioner as a result of actions against him by state agencies lay in a civil
claim rather than a constitutional petition.
In any event, the Petitioner did not raise any issue pertaining to violation of
his constitutional rights at the trial and the evidence he provided herein did
not establish that the criminal justice process he underwent was unfair and
not in lime with constitutional standards.
27. A person acquitted in a criminal trial cannot later bring a constitutional
petitioner alleging violation of his rights under Articles 27 and 47 of the
Constitution if the issue was not raised during trial or appeal or if there are
other alternative remedies available such as an appeal or a civil suit for loss
and damages [See Anwar Vs. Attorney General [2016] eKLR and
Evans Kidero Vs. Attorney General [2016] eKLR].
28. Indeed, under the principle of constitutional avoidance this petition
would fall on its tracks. In the case of Communications Commission of
Kenya & 5 Others Vs. Royal Media Services & 5 Others [2014] eKLR,
the Supreme Court, defined the doctrine of Constitutional avoidance as
follows: -
“The Appellants in this case all seeking to invoke the
“principle of avoidance,” also known as “Constitutional
avoidance.” The principle of avoidance entails that a court
will not determine a constitutional issue, when a matter may
properly be decided on ather basis. In South Africa in S -
Vs. Mhlungu 1995 [3] SA 867[CC] the Constitutional Court
Kentridge AJ, articulated the principles of avoidance in his
minority judgment as follows [at paragraph 50].”
“I would lay it down as a general principle that where it
is possible to decide any case, Civil or Criminal,
without reaching a Constitutional issue, that is the
course which should be followed.”
29. The High Court in KKB Vs. SCM and 5 Others [2022] KEHC
289[KLR] stated that: -
“In summation, the doctrines of ripeness and constitutional
avoidance shun to deal with a constitutional issue where
there exists another legal course which can give the litigant
the relief he seeks. In other words, a constitutional issue is
not ripe for determination until the determination of the
Constitution issue is the only course that can give the
litigant the remedy he seeks. Both constitutional avoidance,
and ripeness avert the determination of the Constitutional
issues until it becomes very necessary to the extent that it
is the only course available to assist the litigant’s cause.”
From the facts of this case and the evidence availed it is quite apparent that
other than deploying this petition against the Respondents for the lawful
actions undertaken against him, the Petitioner had an alternative remedy in
the form of a civil claim for damages for false arrest or imprisonment,
malicious prosecution, loss of employment and income, among other
possible claims of a non-constitutional nature.
30. A part from the Constitutional Principle of avoidance this petition must
also fail on account of or is defeated by lack of sufficient grounds and
evidence to establish and prove the alleged violation of the Petitioner’s
Constitutional Rights.
In sum, the petition is without merit, an abuse of the court process suitable
only for dismissal.
Accordingly, the petition stands dismissed with each party bearing their own
costs.
Delivered and Dated this 4
th day of December 2025
HON. J. R. KARANJAH,
JUDGE'
his constitutional rights to equal protection and equal benefit of the law and
fair administrative action as against the five Respondents, being the
Ministry of Interior and Coordination of the National Government, the
Inspector General of the Kenya National Police Service, the Officer
Commanding Police Station Kapsabet Police Station, Sgt. Maurice
Mangoli and the Hon. the Attorney General of the Republic of Kenya.
2. The claim is based on the facts that on the 16
th December 2021 at about
9:00am at the Winam Law Courts in Kisumu the fourth [4
th
] Respondent,
Sgt. Maurice Mangoli, acting on instructions from the rest of the
Respondents called for the remand of the Petitioner at the Kisumu Maximum
Prison to enable investigations on an allegation of forgery made against the
Petitioner vide O/B No. 24 of 24
th September 2020 on ground that the
Petitioner was a flight risk.
3. Accordingly, the Petitioner was held in custody at the Kisumu Maximum
Security Prison where he was forced by the forth Respondent to affix his
signature on a pre-written statement and provide specimen signatures. He
was thereafter informed that one Omar Cheruiyot was responsible for
making the allegation of forgery against him. He was later on the 23
rd
December 2021 arraigned at a Magistrate’s Court in Kapsabet vide Criminal
Case No. E02759 of 2021 for the offences of forgery, making a document
without authority, uttering a false document and making a false document
vide O/B No. 33 of 22
nd December 2021 rather than O/B No. 24 of 24
th
September 2020.
4. The trial ended on the 26
th April 2023 with the acquittal of the Petitioner even
as his employment contract had long been terminated in the month of
December 2021 due to the allegations made against him which subjected
him to both physical and mental torture while held in remand custody. His
family suffered irreparable damage for his loss of a well paying job and being
labelled a criminal on account of a flawed process.
5. The Petition is basically anchored on the Petitioners averments in the
supporting affidavit dated 24
th June 2024 and further affidavit dated 9
th
November 2024. The Petitioner thus seeks orders for compensation and
indemnity from the Respondents for loss of employment together with loss of
salary for the period 16
th December 2021 to 26
th April 2023. He also seeks
damages for malicious prosecution as well as exemplary and punitive
damages against the Respondents jointly and severally in their personal and
official capacities on account of gross violation of his constitutional rights.
6. The Petitioner further prays for declaration orders specifically against the
Fourth Respondent for acting unlawfully and therefore unfit to hold public
office.
Even though the petition was against all the five Respondents jointly and
severally it is apparent that save the Fifth Respondent [Hon. Attorney
General] the remaining Four Respondents were not served with the
Petition. This was a serious omission as each and every Respondent was
entitled to know the complaint against them and be given an opportunity to
be heard before any decision is made against them by the court in keeping
with the principles of natural justice, particularly the principle that no man
shall be condemned unheard.
7. It is notable that the petition was filed on the 25
th June 2024, yet the alleged
unconstitutional acts were committed against the Petitioner in the years
2021/2021 prior to the acquittal of the Petitioner on 26
th April 2023 in
Kapsabet Magistrate’s Court Criminal Case No. E02759 of 2021.
It was obvious that the petition was prompted by the Petitioner’s acquittal.
8. Be that as it may, the need for a constitutional petition such as the present
petition arises when a person believes that a public authority has acted
unlawfully or has violated his/her constitutional rights.
Herein, the Petitioner, alleges that the Respondents individually and
collectively violated his constitutional rights under Articles 27[1] and 47[1]
of the Constitution i.e. Rights to equal protection and equal benefits of the
law as well as to fair administrative action.
9. A constitutional petition therefore serves as one way for holding public
bodies accountable apart from rectifying injustice and ensuring that the
principles enshrined in the constitution are adhered to and upheld. Not
every legal grievance requires remedy through a constitutional petition as it
is mostly based on an alleged violation, threat on infringement of a right of
fundamental freedom protected in the Bill of rights [Chapter four [4] of the
Constitution].
10. The general Rule is that a petition should be filed without an
unreasonable delay depending on the nature and circumstances of each
particular case and once it is filed it must be served on all the specified
Respondents at least within fifteen [15] days and proof of service must be
filed in court. This is indeed the rule of the thumb.
11. In the enforcement of the Bill of Rights, Article 22[1] of the
Constitution provides for the right of every person to institute court
proceedings claiming that a right of fundamental freedom in the Bill of Rights
has been denied, violated or infringed or is threatened. This is exactly what
the Petitioner has done by way of this petition.
The procedural law for purpose of the petition is Legal Notice No. 117 of
2013 i.e. The Constitution of Kenya [Protection of Rights and
Fundamental Freedom] Practice and Procedure Rules 2013.
12. The scope and objectives of the Rules are spelt out in Section 3 of the
Rules and under Section 6 of the Rules, a party to proceedings
commenced under the Rules is obliged to assist the court to further the
overriding objectives of the Rules by participating in the court process and
complying with the direction and order of the court. However, under Section
8 of the Rules, nothing in the Rules limits or otherwise affect the inherent
power of the court to make such orders as may be necessary for the ends of
justice or to prevent abuse the process of the court.
13. Service of petition is provided for under Section 14 of the Rules. The
Petitioner was thus required to serve the Respondent with the petition and
all supporting documents within fifteen [15] days of filing and to prove
service by way of an affidavit of service in the prescribed form.
These are mandatory requirements for which the Petitioner was expected to
comply. Under Rule 15 upon service the Respondents were expected to
Respond to the Petition by way of a replying affidavit within fourteen [14]
days, but for fourth [4] Respondent who was sued in both his official and
personal capacities the response at least within seven [7] days of service.
14. The factors foregoing clearly suggest that the competence and
propriety of this petition on account of time and service would be the first
issue for determination.
In that regard, the alleged violation of the Petitioner’s fundamental rights
occurred while he was being subjected to a criminal justice process
instigated by a complaint of forgery and related matters made against him by
a fellow citizen. This is not disputed even though there was a minor error in
the charge sheet on the relevant O/B reference number.
15. The Criminal Justice Process culminated in the year 2023 with the
acquittal of the Petitioner on the 26
th April of the year. The alleged
unconstitutional acts attributed to the Respondents actually occurred in the
years 2020/2021. It would therefore be construed that there was
unreasonable delay in the filing of the present petition. However, the
constitution did not set a time limit within which a party could file a claim for
violation of constitutional rights [See, Peter N. Kariuki Vs. Attorney
General [2014] eKLR].
In Dominic Arony Amolo Vs. Attorney General [2010] eKLR, the court
held that the element of time cannot be used to protect the state or any
person from claims of enforcement of fundamental rights.
16. It would therefore follow that this petition cannot be invalidated or
rendered improper and incompetence on account of having been filed
belatedly.
With regard to service of the petition, there is proof by way of the affidavit of
services and notices that the petition may have been served upon the Fifth
Respondent [A.G.], but not the rest of the Respondents. This explains why
the fifth Respondent was the only person who Responded to the petition by
way of the replying affidavit dated 5
th November 2024 deponed by a Chief
Inspector Robert Githinji.
17. Considering the mandatory nature of Rule 14 of the Practice and
Procedure Rules, 2013 the failure by the Petitioner to serve the First,
Second, Third and Fourth Respondents with the petition constituted on error
which may be termed fatal because the affected Respondents were unaware
of the claim made against them in which case they were denied the
opportunity to be heard in defence of the claim. And if the matter were to
proceed in their absence and a decision rendered against them, then they
would have been condemned without being heard and that would be
injustice.
18. The Petitioner made a fatal mistake in assuming that service upon the
fifth Respondent translated into service upon all the Respondents. So the
non-service of the petition upon the First, Second, Third and Fourth
Respondent’s rendered it invalid and incompetent against them. The
petition must and is hereby dismissed as against the First, Second, Third
and Fourth Respondents for want of service, but is hereby sustained as
against the Fifth Respondent.
19. In that regard, the Second issue for determination would be whether
the Petitioner has provided sufficient grounds and evidence to establish and
prove the alleged violation of his rights under Articles 27[1] and 47[1] of the
Constitution. As noted hereinabove this petition germinated from or was
prompted or jumpstarted by the Petitioner’s acquittal in a criminal case
brought against him at the Kapsabet Chief Magistrate’s Court, being
Criminal Case No. E2759 of 2021.
20. A copy of the court’s judgment annexed to the Petitioner’s supporting
affidavit dated 24
th June 2024 shows that the Petitioner was subjected to a
full criminal trial which ended in his acquittal after a consideration of the
evidence in its totality by the trial court which stated in conclusion that: -
“Based on the evidence adduced by both parties, the
authorities cited above and the law, I find the accused not
guilty of the offence of forgery Contrary to Section 349 [a] of
the Penal code and not guilty of the offence of making a
document without authority Contrary to Section 357 [a] of
the Penal Code and not guilty of the offence of making a
false document Contrary to Section 367 of the Penal Code.”
21. Clearly, the acquittal arose from a regular and lawful criminal justice
process whose genesis was a complaint made against the Petitioner to the
police.
It cannot be gainsaid that the mandate of the police service extends to
carrying out investigations into suspected criminal acts such as those made
against the Petitioner. Therefore, the investigations carried out on the
complaint or complaints made against the Appellant were lawful in as much
as they led to his arrest and arraignment in a criminal court.
22. The Petitioners’ prosecution was informed by the outcome of the police
investigations, but was conducted by the office of the Director of Public
Prosecution which exercises the states power of prosecution of criminal
cases.
Both the police and the Director of Public Prosecution in the exercise of their
respective mandates are always required to adhere to the provisions of the
constitution to which they are subject to in Particular Chapter Four [4] of
the Constitution i.e. the Bill of Rights.
23. The High Court as the custodian of the Bill of Rights would intervene
where the facts disclose a violation of the right and fundamental freedom
guaranteed under the Constitution.
It was therefore incumbent upon the Petitioner to establish and prove
violation of his constitutional rights under Articles 27 and 47 of the
Constitution during Police Investigations on the complaint made against
him, his arrest and arraignment in court and his prosecution in court prior to
being declared not guilty and acquitted of all the charges by the court.
24. The facts of this case as emerges from the Petitioner’s averments in
the supporting affidavit dated 24
th June 2024 showed that the police and the
office of the director of public prosecution acted within their lawful mandate
in investigating the complaint, arresting and charging the Petitioner with
criminal offences and prosecuting him accordingly. Whether the
investigations were shoddy, inchoate or scanty was a matter to be raised at
the trial and be determined by the trial court. And so, to, whether there is
any violation of the constitutional rights to equal protection and equal benefit
of the Law or to fair administrative action.
25. The fact that the Petitioner was acquitted of all the charges preferred
against him did not impute that the lawful mandates of the investigating and
prosecuting agencies were exercised without adherence to constitutional
principles. There is nothing in the evidence availed by the Petitioner herein
which demonstrated violation of any of the Petitioner’s Constitutional
Rights. The fact that the Petitioner’s Reputation was punctured by being
charged with a criminal offence and being prosecuted for it and the fact that
he lost his job as a result of the Criminal case did not amount to a violation
of the Petitioner’s Constitutional Rights.
26. If anything, the remedy for any damage or loss suffered by the
Petitioner as a result of actions against him by state agencies lay in a civil
claim rather than a constitutional petition.
In any event, the Petitioner did not raise any issue pertaining to violation of
his constitutional rights at the trial and the evidence he provided herein did
not establish that the criminal justice process he underwent was unfair and
not in lime with constitutional standards.
27. A person acquitted in a criminal trial cannot later bring a constitutional
petitioner alleging violation of his rights under Articles 27 and 47 of the
Constitution if the issue was not raised during trial or appeal or if there are
other alternative remedies available such as an appeal or a civil suit for loss
and damages [See Anwar Vs. Attorney General [2016] eKLR and
Evans Kidero Vs. Attorney General [2016] eKLR].
28. Indeed, under the principle of constitutional avoidance this petition
would fall on its tracks. In the case of Communications Commission of
Kenya & 5 Others Vs. Royal Media Services & 5 Others [2014] eKLR,
the Supreme Court, defined the doctrine of Constitutional avoidance as
follows: -
“The Appellants in this case all seeking to invoke the
“principle of avoidance,” also known as “Constitutional
avoidance.” The principle of avoidance entails that a court
will not determine a constitutional issue, when a matter may
properly be decided on ather basis. In South Africa in S -
Vs. Mhlungu 1995 [3] SA 867[CC] the Constitutional Court
Kentridge AJ, articulated the principles of avoidance in his
minority judgment as follows [at paragraph 50].”
“I would lay it down as a general principle that where it
is possible to decide any case, Civil or Criminal,
without reaching a Constitutional issue, that is the
course which should be followed.”
29. The High Court in KKB Vs. SCM and 5 Others [2022] KEHC
289[KLR] stated that: -
“In summation, the doctrines of ripeness and constitutional
avoidance shun to deal with a constitutional issue where
there exists another legal course which can give the litigant
the relief he seeks. In other words, a constitutional issue is
not ripe for determination until the determination of the
Constitution issue is the only course that can give the
litigant the remedy he seeks. Both constitutional avoidance,
and ripeness avert the determination of the Constitutional
issues until it becomes very necessary to the extent that it
is the only course available to assist the litigant’s cause.”
From the facts of this case and the evidence availed it is quite apparent that
other than deploying this petition against the Respondents for the lawful
actions undertaken against him, the Petitioner had an alternative remedy in
the form of a civil claim for damages for false arrest or imprisonment,
malicious prosecution, loss of employment and income, among other
possible claims of a non-constitutional nature.
30. A part from the Constitutional Principle of avoidance this petition must
also fail on account of or is defeated by lack of sufficient grounds and
evidence to establish and prove the alleged violation of the Petitioner’s
Constitutional Rights.
In sum, the petition is without merit, an abuse of the court process suitable
only for dismissal.
Accordingly, the petition stands dismissed with each party bearing their own
costs.
Delivered and Dated this 4
th day of December 2025
HON. J. R. KARANJAH,
JUDGE'