[1] The Petition dated 20 th January 2021 was filed by J O W for the following reliefs;
[a] A declaration that the action of the police and medical staff of carrying out a forced anal examination upon him amounted to a violation of his rights; and in particular:
[i] His right to human dignity under Article 28 of the Constitution;
[ii] His freedom and the security of his person under Article 29 of the Constitution;
[iii] His right to privacy under Article 31 of the Constitution; and,
[iv] His right as an arrested person under Article 49 of the Constitution;
[b] A declaration that the action of the police in forcing the petitioner to undergo HIV test and/or publishing his results amounted to a violation of the petitioner’s rights, namely:
[i] His right to human dignity under Article 28 of the Constitution;
[ii] His freedom and the security of his person under Article 29 of the Constitution;
[iii] His right to privacy under Article 31 of the Constitution; and,
[iv] His right as an arrested person under Article 49 of the Constitution;
[c] A declaration that any information, record, document, exhibit, result or confession obtained or prepared from the forced anal and genital examination and HIV test are inadmissible in a criminal trial against the petitioner.
[d] A declaration that the enforcement of Sections 162(c) of the Penal Code, Chapter 63 of the Laws of Kenya under which the petitioner had been charged is in violation of Articles 10, 12, 19, 24, 27, 28, 31 and 33 of the Constitution of Kenya.
[e] A declaration that Sections 162(a) and (c) and 163 of the Penal Code, Chapter 63 of the Laws of Kenya are in violation of Articles 10, 12, 19, 24, 27, 28, 31 and 33 of the Constitution of Kenya , and are therefore null and void.
[f] General damages.
[g] Any other relief that the Court deems fit to grant under the circumstances.
[h] Costs of the Petition.
[2] At paragraphs 6, 7, 8, 9 and 10 of the Petition, the petitioner stated that he is an adult male of sound mind aged 28 years old and that until 27 th February 2020, he was residing at Ujamaa area of Likoni Sub-County within Mombasa County. He further stated that on the 27 th February 2020 at 10.00 pm he was arrested by police officers from Inuka Police Station alongside B K R (a minor) on allegations that they had committed the offence of unnatural act; and that they were thereafter escorted to Manyatta Medical Clinic within Likoni area for medical examination without their consent.
[3] The petitioner further stated, at paragraphs 12 to 33, that the procedures and the conditions under which the examinations and tests were carried out were deeply invasive, intrusive, profoundly humiliating and deeply traumatizing, given the conditions under which they were conducted. The petitioner added that on the 28 th February 2020, they were each charged with the offence of unnatural act contrary to Section 162(c) of the Penal Code in Mombasa Sexual Offence Cases No. 29 and 30 of 2020.
[4] In the premises, the petitioner posited that all the above-mentioned actions amounted to violation of his rights and fundamental freedoms. In particular, the petitioner alleged the following violations:
[a] His inherent right to dignity and the right to have that right respected and protected under Article 28 of the Constitution and Article 10 of the International Covenant on Civil and Political Rights (ICCPR).
[b] His right to freedom and security of the person, which includes the right not to be;
[i] subjected to any form of violence from either the public or private sources under Article 29(c) of the Constitution and Article 9 of the ICCPR;
[ii] subjected to torture in any manner, whether physical or psychological under Article 29(d) of the Constitution and Article 7 of the ICCPR.
[iii] treated or punished in a cruel, inhuman or degrading manner under Article 29(f) of the Constitution, Article 7 of the ICCPR, Article 16 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Articles 4 and 5 of the African Charter on Human and Peoples’ Rights.
[c] His right to privacy under Article 31 of the Constitution and Article 17 of the ICCPR.
[d] His right to remain silent under Article 49(1)(b) of the Constitution.
[e] His right not to be compelled to make any confession or admission that could be used in evidence against him under Article 49(1)(d) of the Constitution and Article 14 of the ICCPR and Article 15 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
[f] That the provisions of Section 162(c) of the Penal Code under which he was charged by the 1 st and 2 nd respondents, are unconstitutional, being in violation of Articles 24, 28, 31, 32 and 33 of the Constitution as well as Articles 17, 18 and 19 of the ICCPR, Article 16 of the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, and Articles 4, 5 and 8 of the African Charter on Human and People’s Rights.
[5] The petitioner further averred that Sections 162(a) and (c), 163 and 165 of the Penal Code violate the Constitution by denying, infringing and/or limiting the right to human dignity as guaranteed under Article 28 of the Constitution; the right to privacy guaranteed under Article 31 of the Constitution; the freedom of conscience and belief guaranteed under Article 32 of the Constitution ; the freedom of expression guaranteed under Article 33 of the Constitution and the right to equality and freedom from discrimination guaranteed under Article 27 of the Constitution.
[6] Accordingly, the petitioner approached the Court pursuant to Articles 22(1), 23, 165 and 258 of the Constitution for redress. He filed an Amended Petition on 14 th January 2022 to include additional prayers in respect of his prosecution in Mombasa Chief Magistrate’s Sexual Offence Case No. 30 of 2020 .
[7] The respondents opposed the Petition. On behalf of the 2 nd and 4 th respondents, a Replying Affidavit was filed herein, sworn by No. 60192 Cpl Fatuma Mbale , a police officer then attached to Inuka Police Station. She deposed that a complaint was lodged at Inuka Police Station by the mother of B K R against the petitioner; the allegation being that the petitioner had sodomized B K R who was then a student at Ngomeni Secondary School. Cpl Mbale confirmed that the complaint was recorded in the station’s Occurrence Book. The petitioner was thereafter arrested pending investigations.
[8] Cpl Mbale further averred that, in the course of investigations, she caused both the complainant and the petitioner to be examined pursuant to Section 122(a), (b) and (c) of the Penal Code , after which she forwarded the file to the Office of the Director of Public Prosecutions for perusal and advice.
[9] On behalf of the 3 rd respondent, a Replying Affidavit sworn by Stephen Kalai was filed herein on 13 th April 2021. The affiant deposed that he was then in charge of the Likoni Sub County Gender Based Violence and Adolescent Youth Program (SCGBV/AYP) and was therefore authorized by the 3 rd respondent to make the deposition. He deposed that Ujamaa Medical Clinic is a private facility and is therefore not under the charge of the 3 rd respondent. He explained that the facility run by the 3 rd respondent in Likoni Sub County is Likoni Sub County Hospital; and therefore the 3 rd respondent was a stranger to the averments set out at paragraphs 1 to 6 of the petitioner’s Supporting Affidavit.
[10] The 3 rd respondent further deposed that the petitioner was examined on the 27 th February 2020 at Likoni Sub-County Hospital with his consent. A medical report to that effect was produced as an annexure to the 3 rd respondent’s affidavit. In sum, the 3 rd respondent contended that the petitioner had failed to discharge the burden of proof against it and urged for the dismissal of the Petition.
[11] The 4 th respondent also filed a Reply to the Petition dated 12 th April 2021, contending that:
[a] The Petition does not meet the test of a constitutional petition as laid down in the case of Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154.
[b] The petitioner’s rights under Article 28, 29 and 31 of the Constitution are not absolute; and are subject to the limitation as envisaged under Article 24 of the Constitution.
[c] That the constitutionality of Section 162, 163 and 165 of the Penal Code was confirmed by a three judge bench in E G & 7 others v Attorney General: D K M & 9 others (Interested Parties): Katiba Institute & another (Amicus Curiae).
[d] That the offence in Section 165 of the Penal Code can only be committed by a male person and that the section applies to all male persons irrespective of their sexual orientation hence cannot be said to be discriminatory.
[e] That the Petition does not state how Sections 162, 163 and 165 of the Penal Code contravene and/or violate Articles 10, 12, 19, 24, 27, 28, 31, 32 and 33 of the Constitution to warrant the grant of the orders sought.
[f] That an accused person’s right cannot be construed to negate the rights of the victim of a sexual offence.
[g] That the petitioner herein seeks to circumvent the criminal charges brought by the Director of Public Prosecutions as mandated by Article 157 of the Constitution.
[12] The Petitioner thereafter filed an Amended Petition on 14 th January 2022 with the leave of the Court. The only changes introduced by that amendment were additional prayers for Prohibition and Certiorari in connection with the petitioner’s prosecution in Mombasa Chief Magistrate’s Sexual Offence Case No. 30 of 2020.
[13] The Petition was canvassed by way of viva voce evidence. The petitioner testified on 28 th October 2021. He told the Court that, at about 10.00 pm on the 27 th February 2020, he was at his house at Ujamaa in Likoni area of Mombasa when plain clothes police officers went to his house and instructed him to accompany them to the police station. He mentioned that they were accompanied by the mother of B K R, who was one of his neighbours. They were taken to Inuka Police Station where they were informed of the reason for their arrest, namely, that he had sodomized B K R.
[14] The petitioner confirmed that they were thereafter escorted by the Police to Likoni Sub-County Hospital where they were examined without their consent to ascertain whether they had committed the act of sodomy. He testified that before examination, he was asked to sign a piece of paper without being allowed to read the same. The petitioner testified that he was then subjected to anal examination in the presence of the police, B K R and others who were unknown to him; and that all the while they were laughing and jeering at him.
[15] The petitioner further told the Court in his evidence that he was taken to another room where his blood samples were taken for what he was later to be told was HIV test. His evidence was that no explanation was given as to why blood samples were being taken from him and therefore he did not give consent to be tested for HIV. He also testified that the result of the HIV test was never communicated to him. Instead, he was returned to Inuka Police Station, was thereafter charged with unnatural offence and arraigned before court.
[16] The respondents called three witnesses, namely, PC Mwinyi Haji Mohamed (DW1), Cpl. Fatuma Mbale (DW2), both of Inuka Police Station and Stephen Kalai (DW3), the officer in charge of Gender-based Violence and Youth Programmes as Likoni Sub-County Hospital. DW1 testified that on 27 th July 2020 at around 9.00 am he was in the office with DW2 when a complaint was reported to them of sodomy against the petitioner by a certain boy whose name he came to learn to be B K R. The boy was accompanied by his mother. DW1 further stated that upon booking the report in the station’s Occurrence Book, they proceeded to arrest the petitioner and thereafter escorted him along with the complainant to hospital for examination. He conceded that he was given the results of the tests and treated the same as exhibits to be produced in the criminal case in which the two were charged with committing an unnatural offence.
[17] DW2 corroborated the evidence of DW1 and testified that on the 27 th February 2020 she was at the Gender Office when the complainant B K R returned to the Inuka Police Station in the company of his mother to follow up on a sodomy report that they had reported on 23 rd February 2020. The complainant led the police to the house of the petitioner and upon arrest, the suspect as well as the complainant were escorted by PC Mwinyi and PC Muthoni to Likoni Sub-County Hospital for examination. DW2 confirmed that, as the investigating officer, she was shown the result of the tests and examination conducted on the complainant and the petitioner and that the documents show that the petitioner had been subjected to anal examination as well as HIV test.
[18] It was further the evidence of DW2 that after concluding her investigations she preferred charges against both the petitioner and the complainant. She treated B K R as the complainant against the petitioner and the petitioner as the complainant against B K R.
[19] DW3 adopted the averments made in his Replying Affidavit. He testified that he was then in charge of Likoni Sub County Hospital’s Gender Based Violence and Adolescent Youth Program (SCGBV/AYP). DW3 explained that whereas Ujamaa Medical Clinic is a private facility and is therefore not under the charge of the 3 rd respondent, the facility run by the 3 rd respondent in Likoni Sub County is Likoni Sub County Hospital; and therefore the 3 rd respondent was a stranger to the averments set out at paragraphs 1 to 6 of the petitioner’s Supporting Affidavit.
[20] The 3 rd respondent further testified that the petitioner was examined on the 27 th February 2020 at Likoni Sub-County Hospital with his consent. In sum, the 3 rd respondent contended that the petitioner has failed to discharge the burden of proof against it and urged for the dismissal of the Petition.
[21] I have carefully considered the Petition, the response thereto and the written submission filed on behalf of the parties. There is no dispute that on the 27 th February 2020 at 10.00 pm the petitioner was arrested by police officers from Inuka Police Station alongside B K R on allegations that they had committed unnatural sexual act. They were thereafter escorted to Likoni Sub-County Medical Clinic within Likoni area for medical examination with a view of being charged with the offence of unnatural act contrary to Section 162(c) of the Penal Code.
[22] Whereas the petitioner contends that he was subjected to intrusive medical examination without his consent, the respondents were of the posturing that he not only gave the requisite consent but also that it was permissible, in law, to conduct the examination in furtherance of the public good. Therefore, the issues for determination are:
[a] Whether the acts of the 2 nd and 3 rd respondent of carrying out anal and genital examination upon the petitioner amounted to a violation of the petitioner’s rights under Articles 27, 28, 29, 31, 49 and 50 of the Constitution.
[b] Whether the action of the 3 rd respondent in causing the petitioner to undergo an HIV and publishing his results amounted to a violation of the petitioner’s rights under Articles 28, 29, 31, 49 and 50 of the Constitution;
[c] Whether Sections 162(a) and (c) and 163 of the Penal Code, Chapter 63 of the Laws of Kenya are in violation of Articles 10, 12, 19, 24, 27, 28, 31 and 33 of the Constitution of Kenya , and are therefore null and void.
[d] Whether the petitioners are entitled to compensation for the violation.
[23] According to the 4 th respondent the Petition does not raise constitutional issues and therefore ought to be struck out without further ado. Counsel for the 4 th respondent relied on the case of Anarita Karimi Njeru v Republic [1979] eKLR in which it was held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[24] The principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as hereunder:
“(42)…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[25] It was therefore imperative for the petitioner to plead his case with the precision. I have looked at the Amended Petition and note that the petitioner made specific references to the specific provisions of the Constitution on which his 20-page Petition is hinged. This is manifest at pages 7 to 10 of the Petition as well as in the Prayers set out at pages 10 to 11 of the Petition. He likewise set out the particulars of breach alongside the aforementioned Articles. Accordingly, not much turns on the 4 th respondents’ contention that the Petition does not meet the requisite threshold is unfounded.
[26] The Constitution itself states how it ought to be interpreted. Article 259(1) states:
“This Constitution shall be interpreted in a manner that—
promotes its purposes, values and principles;
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
permits the development of the law; and
contributes to good governance.”
[27] Accordingly, in the Ugandan case of Tinyefuza v Attorney General Constitutional Appeal No. 1 of 1997 [UGCC] 3, the court held as follows:
“The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.”
[28] And, in the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, the Supreme Court held as follows: -
“[54] Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”
[29] In terms of the burden of proof, the Supreme Court pronounced itself in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR, as follows:
“[47] It is a timeless rule of the common law tradition, Kenya’s juristic heritage, and one of fair and pragmatic conception, that the party making an averment in validation of a claim, is always the one to establish the plain veracity of the claim. In civil claims, the standard of proof is the “balance of probability”. Balance of probability is a concept deeply linked to the perceptible fact-scenario: so there has to be evidence, on the basis of which the Court can determine that it was more probable than not, that the Respondent bore responsibility, in whole or in part.
[30] The position was reiterated by the Supreme Court in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) thus:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[31] With the foregoing in mind, I have given due consideration to the issues aforementioned and the averments of the petitioners in the light of the pertinent provisions of the Constitution as follows:
A. On whether the action of the 2 nd and 3 rd respondents of carrying out anal and genital examination upon the petitioner amounted to a violation of the petitioner’s rights under Articles 27, 28, 29, 31, 49 and 50 of the Constitution:
[32] Article 27 of the Constitution provides as follows in its Sub-Articles (1) and (2):
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
[33] According to Black’s Law Dictionary , “discrimination” is defined to mean:
“Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”
[34] In Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR it was held that:
“...discrimination, simply put, is any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups…The Constitution advocates for non-discrimination as a fundamental right which guarantees that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. It must however be borne in mind that it is not every distinction or differentiation in treatment that amounts to discrimination. Discrimination as seen from the definitions, will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim.”
[35] Thus, it was incumbent upon the petitioner to demonstrate by way of evidence that he was given differential treatment from the way prisoners in similar circumstances were treated by the respondents. No such evidence was presented. Indeed, in E G v … it was held:
“296. Our reading of the challenged provisions suggests otherwise. The language of section 162 is clear. It uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.
297. Similarly, section 165 uses the words “ Any male person.” A plain reading of the section reveals that it targets male persons and not a particular group with a particular sexual orientation. The wording of this section leaves no doubt that in enacting this provision, Parliament appreciated that the offence under this section can only be committed by a male person. In fact, the short title to the section reads “indecent practices between males.” The operative words here are “Any male person” which clearly does not target male persons of a particular sexual orientation.
[36] It is therefore my considered finding that the contention by the petitioner that he had been discriminated against is untenable.
[37] There is no gainsaying that the right to human dignity is, in essence an affirmation and an integral aspect of the other rights and fundamental freedoms enshrined in the Constitution. The right to dignity is provided for in Article 28 of the Constitution as follows:
“Every person has inherent dignity and the right to have that dignity respected and protected.”
[38] This constitutional imperative was discussed in Ahmed Issack Hassan v Auditor General in which the Court held:
“The right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights…if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated.”
[39] Similarly, in Constitutional Petition No. E321 of 2021: Liburuwen Kasanguru Kweri v Beehive Media Limited, the Court held:
“122.Turning to the defamatory claim which is based on article 28 of the Constitution , it is apparent that the claim is based on whether article 31 of the Constitution is found have been infringed. I say so because in the event it is found that the article 31 rights were not infringed, then the claim on defamation will not stand.
123.Going by the holding in respect to the article 31 rights above, it is only prudent that the claim on constitutional defamation do await the outcome of the dispute on article 31 of the Constitution .”
[40] The right is also underscored in Article 10 of the International Covenant on Civil and Political Rights (ICCPR) which is applicable locally by dint of Article 2 of the Constitution.
[41] Given the all-encompassing nature of the right to dignity, it is pertinent, in the context of this case, to consider it alongside the right to freedom and security of the person under Article 29 and the right to privacy under Article 31 of the Constitution. Article 29 states that:
“Every person has the right to freedom and security of the person, which includes the right not to be—
(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.”
[42] On the other hand, Article 31 states:
“Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
[43] Therefore, I entirely agree with the position taken by Hon. Mativo, J. (as he then was) in M W K & another v Attorney General & 3 others that:
“Privacy fosters human dignity insofar as it is premised on and protects an individual’s entitlement to a ‘sphere of private intimacy and autonomy. The rights of equality and dignity are closely related as are the rights of dignity and privacy.”
[44] In Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau [2016] eKLR, it was held:
“Article 29 of the Constitution combines a right to freedom and security of the person with a right to be free from bodily and psychological integrity. It is essentially intended to protect the physical integrity and dignity of the individual. The rights not to be subjected to torture in any manner or not to be treated or punished in a cruel, inhuman or degrading manner are components of the right to freedom and security of the person. These two components (torture on the one hand and cruel, inhuman and degrading manner on the other) are, under Article 25(
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[a] A declaration that the action of the police and medical staff of carrying out a forced anal examination upon him amounted to a violation of his rights; and in particular:
[i] His right to human dignity under Article 28 of the Constitution;
[ii] His freedom and the security of his person under Article 29 of the Constitution;
[iii] His right to privacy under Article 31 of the Constitution; and,
[iv] His right as an arrested person under Article 49 of the Constitution;
[b] A declaration that the action of the police in forcing the petitioner to undergo HIV test and/or publishing his results amounted to a violation of the petitioner’s rights, namely:
[i] His right to human dignity under Article 28 of the Constitution;
[ii] His freedom and the security of his person under Article 29 of the Constitution;
[iii] His right to privacy under Article 31 of the Constitution; and,
[iv] His right as an arrested person under Article 49 of the Constitution;
[c] A declaration that any information, record, document, exhibit, result or confession obtained or prepared from the forced anal and genital examination and HIV test are inadmissible in a criminal trial against the petitioner.
[d] A declaration that the enforcement of Sections 162(c) of the Penal Code, Chapter 63 of the Laws of Kenya under which the petitioner had been charged is in violation of Articles 10, 12, 19, 24, 27, 28, 31 and 33 of the Constitution of Kenya.
[e] A declaration that Sections 162(a) and (c) and 163 of the Penal Code, Chapter 63 of the Laws of Kenya are in violation of Articles 10, 12, 19, 24, 27, 28, 31 and 33 of the Constitution of Kenya , and are therefore null and void.
[f] General damages.
[g] Any other relief that the Court deems fit to grant under the circumstances.
[h] Costs of the Petition.
[2] At paragraphs 6, 7, 8, 9 and 10 of the Petition, the petitioner stated that he is an adult male of sound mind aged 28 years old and that until 27 th February 2020, he was residing at Ujamaa area of Likoni Sub-County within Mombasa County. He further stated that on the 27 th February 2020 at 10.00 pm he was arrested by police officers from Inuka Police Station alongside B K R (a minor) on allegations that they had committed the offence of unnatural act; and that they were thereafter escorted to Manyatta Medical Clinic within Likoni area for medical examination without their consent.
[3] The petitioner further stated, at paragraphs 12 to 33, that the procedures and the conditions under which the examinations and tests were carried out were deeply invasive, intrusive, profoundly humiliating and deeply traumatizing, given the conditions under which they were conducted. The petitioner added that on the 28 th February 2020, they were each charged with the offence of unnatural act contrary to Section 162(c) of the Penal Code in Mombasa Sexual Offence Cases No. 29 and 30 of 2020.
[4] In the premises, the petitioner posited that all the above-mentioned actions amounted to violation of his rights and fundamental freedoms. In particular, the petitioner alleged the following violations:
[a] His inherent right to dignity and the right to have that right respected and protected under Article 28 of the Constitution and Article 10 of the International Covenant on Civil and Political Rights (ICCPR).
[b] His right to freedom and security of the person, which includes the right not to be;
[i] subjected to any form of violence from either the public or private sources under Article 29(c) of the Constitution and Article 9 of the ICCPR;
[ii] subjected to torture in any manner, whether physical or psychological under Article 29(d) of the Constitution and Article 7 of the ICCPR.
[iii] treated or punished in a cruel, inhuman or degrading manner under Article 29(f) of the Constitution, Article 7 of the ICCPR, Article 16 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and Articles 4 and 5 of the African Charter on Human and Peoples’ Rights.
[c] His right to privacy under Article 31 of the Constitution and Article 17 of the ICCPR.
[d] His right to remain silent under Article 49(1)(b) of the Constitution.
[e] His right not to be compelled to make any confession or admission that could be used in evidence against him under Article 49(1)(d) of the Constitution and Article 14 of the ICCPR and Article 15 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
[f] That the provisions of Section 162(c) of the Penal Code under which he was charged by the 1 st and 2 nd respondents, are unconstitutional, being in violation of Articles 24, 28, 31, 32 and 33 of the Constitution as well as Articles 17, 18 and 19 of the ICCPR, Article 16 of the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, and Articles 4, 5 and 8 of the African Charter on Human and People’s Rights.
[5] The petitioner further averred that Sections 162(a) and (c), 163 and 165 of the Penal Code violate the Constitution by denying, infringing and/or limiting the right to human dignity as guaranteed under Article 28 of the Constitution; the right to privacy guaranteed under Article 31 of the Constitution; the freedom of conscience and belief guaranteed under Article 32 of the Constitution ; the freedom of expression guaranteed under Article 33 of the Constitution and the right to equality and freedom from discrimination guaranteed under Article 27 of the Constitution.
[6] Accordingly, the petitioner approached the Court pursuant to Articles 22(1), 23, 165 and 258 of the Constitution for redress. He filed an Amended Petition on 14 th January 2022 to include additional prayers in respect of his prosecution in Mombasa Chief Magistrate’s Sexual Offence Case No. 30 of 2020 .
[7] The respondents opposed the Petition. On behalf of the 2 nd and 4 th respondents, a Replying Affidavit was filed herein, sworn by No. 60192 Cpl Fatuma Mbale , a police officer then attached to Inuka Police Station. She deposed that a complaint was lodged at Inuka Police Station by the mother of B K R against the petitioner; the allegation being that the petitioner had sodomized B K R who was then a student at Ngomeni Secondary School. Cpl Mbale confirmed that the complaint was recorded in the station’s Occurrence Book. The petitioner was thereafter arrested pending investigations.
[8] Cpl Mbale further averred that, in the course of investigations, she caused both the complainant and the petitioner to be examined pursuant to Section 122(a), (b) and (c) of the Penal Code , after which she forwarded the file to the Office of the Director of Public Prosecutions for perusal and advice.
[9] On behalf of the 3 rd respondent, a Replying Affidavit sworn by Stephen Kalai was filed herein on 13 th April 2021. The affiant deposed that he was then in charge of the Likoni Sub County Gender Based Violence and Adolescent Youth Program (SCGBV/AYP) and was therefore authorized by the 3 rd respondent to make the deposition. He deposed that Ujamaa Medical Clinic is a private facility and is therefore not under the charge of the 3 rd respondent. He explained that the facility run by the 3 rd respondent in Likoni Sub County is Likoni Sub County Hospital; and therefore the 3 rd respondent was a stranger to the averments set out at paragraphs 1 to 6 of the petitioner’s Supporting Affidavit.
[10] The 3 rd respondent further deposed that the petitioner was examined on the 27 th February 2020 at Likoni Sub-County Hospital with his consent. A medical report to that effect was produced as an annexure to the 3 rd respondent’s affidavit. In sum, the 3 rd respondent contended that the petitioner had failed to discharge the burden of proof against it and urged for the dismissal of the Petition.
[11] The 4 th respondent also filed a Reply to the Petition dated 12 th April 2021, contending that:
[a] The Petition does not meet the test of a constitutional petition as laid down in the case of Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154.
[b] The petitioner’s rights under Article 28, 29 and 31 of the Constitution are not absolute; and are subject to the limitation as envisaged under Article 24 of the Constitution.
[c] That the constitutionality of Section 162, 163 and 165 of the Penal Code was confirmed by a three judge bench in E G & 7 others v Attorney General: D K M & 9 others (Interested Parties): Katiba Institute & another (Amicus Curiae).
[d] That the offence in Section 165 of the Penal Code can only be committed by a male person and that the section applies to all male persons irrespective of their sexual orientation hence cannot be said to be discriminatory.
[e] That the Petition does not state how Sections 162, 163 and 165 of the Penal Code contravene and/or violate Articles 10, 12, 19, 24, 27, 28, 31, 32 and 33 of the Constitution to warrant the grant of the orders sought.
[f] That an accused person’s right cannot be construed to negate the rights of the victim of a sexual offence.
[g] That the petitioner herein seeks to circumvent the criminal charges brought by the Director of Public Prosecutions as mandated by Article 157 of the Constitution.
[12] The Petitioner thereafter filed an Amended Petition on 14 th January 2022 with the leave of the Court. The only changes introduced by that amendment were additional prayers for Prohibition and Certiorari in connection with the petitioner’s prosecution in Mombasa Chief Magistrate’s Sexual Offence Case No. 30 of 2020.
[13] The Petition was canvassed by way of viva voce evidence. The petitioner testified on 28 th October 2021. He told the Court that, at about 10.00 pm on the 27 th February 2020, he was at his house at Ujamaa in Likoni area of Mombasa when plain clothes police officers went to his house and instructed him to accompany them to the police station. He mentioned that they were accompanied by the mother of B K R, who was one of his neighbours. They were taken to Inuka Police Station where they were informed of the reason for their arrest, namely, that he had sodomized B K R.
[14] The petitioner confirmed that they were thereafter escorted by the Police to Likoni Sub-County Hospital where they were examined without their consent to ascertain whether they had committed the act of sodomy. He testified that before examination, he was asked to sign a piece of paper without being allowed to read the same. The petitioner testified that he was then subjected to anal examination in the presence of the police, B K R and others who were unknown to him; and that all the while they were laughing and jeering at him.
[15] The petitioner further told the Court in his evidence that he was taken to another room where his blood samples were taken for what he was later to be told was HIV test. His evidence was that no explanation was given as to why blood samples were being taken from him and therefore he did not give consent to be tested for HIV. He also testified that the result of the HIV test was never communicated to him. Instead, he was returned to Inuka Police Station, was thereafter charged with unnatural offence and arraigned before court.
[16] The respondents called three witnesses, namely, PC Mwinyi Haji Mohamed (DW1), Cpl. Fatuma Mbale (DW2), both of Inuka Police Station and Stephen Kalai (DW3), the officer in charge of Gender-based Violence and Youth Programmes as Likoni Sub-County Hospital. DW1 testified that on 27 th July 2020 at around 9.00 am he was in the office with DW2 when a complaint was reported to them of sodomy against the petitioner by a certain boy whose name he came to learn to be B K R. The boy was accompanied by his mother. DW1 further stated that upon booking the report in the station’s Occurrence Book, they proceeded to arrest the petitioner and thereafter escorted him along with the complainant to hospital for examination. He conceded that he was given the results of the tests and treated the same as exhibits to be produced in the criminal case in which the two were charged with committing an unnatural offence.
[17] DW2 corroborated the evidence of DW1 and testified that on the 27 th February 2020 she was at the Gender Office when the complainant B K R returned to the Inuka Police Station in the company of his mother to follow up on a sodomy report that they had reported on 23 rd February 2020. The complainant led the police to the house of the petitioner and upon arrest, the suspect as well as the complainant were escorted by PC Mwinyi and PC Muthoni to Likoni Sub-County Hospital for examination. DW2 confirmed that, as the investigating officer, she was shown the result of the tests and examination conducted on the complainant and the petitioner and that the documents show that the petitioner had been subjected to anal examination as well as HIV test.
[18] It was further the evidence of DW2 that after concluding her investigations she preferred charges against both the petitioner and the complainant. She treated B K R as the complainant against the petitioner and the petitioner as the complainant against B K R.
[19] DW3 adopted the averments made in his Replying Affidavit. He testified that he was then in charge of Likoni Sub County Hospital’s Gender Based Violence and Adolescent Youth Program (SCGBV/AYP). DW3 explained that whereas Ujamaa Medical Clinic is a private facility and is therefore not under the charge of the 3 rd respondent, the facility run by the 3 rd respondent in Likoni Sub County is Likoni Sub County Hospital; and therefore the 3 rd respondent was a stranger to the averments set out at paragraphs 1 to 6 of the petitioner’s Supporting Affidavit.
[20] The 3 rd respondent further testified that the petitioner was examined on the 27 th February 2020 at Likoni Sub-County Hospital with his consent. In sum, the 3 rd respondent contended that the petitioner has failed to discharge the burden of proof against it and urged for the dismissal of the Petition.
[21] I have carefully considered the Petition, the response thereto and the written submission filed on behalf of the parties. There is no dispute that on the 27 th February 2020 at 10.00 pm the petitioner was arrested by police officers from Inuka Police Station alongside B K R on allegations that they had committed unnatural sexual act. They were thereafter escorted to Likoni Sub-County Medical Clinic within Likoni area for medical examination with a view of being charged with the offence of unnatural act contrary to Section 162(c) of the Penal Code.
[22] Whereas the petitioner contends that he was subjected to intrusive medical examination without his consent, the respondents were of the posturing that he not only gave the requisite consent but also that it was permissible, in law, to conduct the examination in furtherance of the public good. Therefore, the issues for determination are:
[a] Whether the acts of the 2 nd and 3 rd respondent of carrying out anal and genital examination upon the petitioner amounted to a violation of the petitioner’s rights under Articles 27, 28, 29, 31, 49 and 50 of the Constitution.
[b] Whether the action of the 3 rd respondent in causing the petitioner to undergo an HIV and publishing his results amounted to a violation of the petitioner’s rights under Articles 28, 29, 31, 49 and 50 of the Constitution;
[c] Whether Sections 162(a) and (c) and 163 of the Penal Code, Chapter 63 of the Laws of Kenya are in violation of Articles 10, 12, 19, 24, 27, 28, 31 and 33 of the Constitution of Kenya , and are therefore null and void.
[d] Whether the petitioners are entitled to compensation for the violation.
[23] According to the 4 th respondent the Petition does not raise constitutional issues and therefore ought to be struck out without further ado. Counsel for the 4 th respondent relied on the case of Anarita Karimi Njeru v Republic [1979] eKLR in which it was held:
“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
[24] The principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as hereunder:
“(42)…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:
“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”
[25] It was therefore imperative for the petitioner to plead his case with the precision. I have looked at the Amended Petition and note that the petitioner made specific references to the specific provisions of the Constitution on which his 20-page Petition is hinged. This is manifest at pages 7 to 10 of the Petition as well as in the Prayers set out at pages 10 to 11 of the Petition. He likewise set out the particulars of breach alongside the aforementioned Articles. Accordingly, not much turns on the 4 th respondents’ contention that the Petition does not meet the requisite threshold is unfounded.
[26] The Constitution itself states how it ought to be interpreted. Article 259(1) states:
“This Constitution shall be interpreted in a manner that—
promotes its purposes, values and principles;
advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
permits the development of the law; and
contributes to good governance.”
[27] Accordingly, in the Ugandan case of Tinyefuza v Attorney General Constitutional Appeal No. 1 of 1997 [UGCC] 3, the court held as follows:
“The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.”
[28] And, in the Matter of the Principle of Gender Representation in the National Assembly and the Senate [2012] eKLR, the Supreme Court held as follows: -
“[54] Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”
[29] In terms of the burden of proof, the Supreme Court pronounced itself in Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR, as follows:
“[47] It is a timeless rule of the common law tradition, Kenya’s juristic heritage, and one of fair and pragmatic conception, that the party making an averment in validation of a claim, is always the one to establish the plain veracity of the claim. In civil claims, the standard of proof is the “balance of probability”. Balance of probability is a concept deeply linked to the perceptible fact-scenario: so there has to be evidence, on the basis of which the Court can determine that it was more probable than not, that the Respondent bore responsibility, in whole or in part.
[30] The position was reiterated by the Supreme Court in Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019) Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023) thus:
“A petitioner bore the burden to prove his/her claim of alleged threat or violation of rights and freedoms to the requisite standard of proof, which was on a balance of probabilities. Such claims were by nature civil causes. The onus of proof was on the 1 st appellant to adduce sufficient evidence to demonstrate that she owned or erected or lived in the alleged properties; and that State agents interfered or deprived her of the subject properties. That was the import of section 107 of the Evidence Act on the burden of proof.”
[31] With the foregoing in mind, I have given due consideration to the issues aforementioned and the averments of the petitioners in the light of the pertinent provisions of the Constitution as follows:
A. On whether the action of the 2 nd and 3 rd respondents of carrying out anal and genital examination upon the petitioner amounted to a violation of the petitioner’s rights under Articles 27, 28, 29, 31, 49 and 50 of the Constitution:
[32] Article 27 of the Constitution provides as follows in its Sub-Articles (1) and (2):
(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
[33] According to Black’s Law Dictionary , “discrimination” is defined to mean:
“Differential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”
[34] In Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR it was held that:
“...discrimination, simply put, is any distinction, exclusion or preference made on the basis of differences to persons or group of persons based such considerations as race, colour, sex, religious beliefs political persuasion or any such attributes that has real or potential effect of nullifying or impairing equality of opportunity or treatment between two persons or groups…The Constitution advocates for non-discrimination as a fundamental right which guarantees that people in equal circumstances be treated or dealt with equally both in law and practice without unreasonable distinction or differentiation. It must however be borne in mind that it is not every distinction or differentiation in treatment that amounts to discrimination. Discrimination as seen from the definitions, will be deemed to arise where equal classes of people are subjected to different treatment, without objective or reasonable justification or proportionality between the aim sought and the means employed to achieve that aim.”
[35] Thus, it was incumbent upon the petitioner to demonstrate by way of evidence that he was given differential treatment from the way prisoners in similar circumstances were treated by the respondents. No such evidence was presented. Indeed, in E G v … it was held:
“296. Our reading of the challenged provisions suggests otherwise. The language of section 162 is clear. It uses the words “Any person.” A natural and literal construction of these words leaves us with no doubt that the section does not target any particular group of persons.
297. Similarly, section 165 uses the words “ Any male person.” A plain reading of the section reveals that it targets male persons and not a particular group with a particular sexual orientation. The wording of this section leaves no doubt that in enacting this provision, Parliament appreciated that the offence under this section can only be committed by a male person. In fact, the short title to the section reads “indecent practices between males.” The operative words here are “Any male person” which clearly does not target male persons of a particular sexual orientation.
[36] It is therefore my considered finding that the contention by the petitioner that he had been discriminated against is untenable.
[37] There is no gainsaying that the right to human dignity is, in essence an affirmation and an integral aspect of the other rights and fundamental freedoms enshrined in the Constitution. The right to dignity is provided for in Article 28 of the Constitution as follows:
“Every person has inherent dignity and the right to have that dignity respected and protected.”
[38] This constitutional imperative was discussed in Ahmed Issack Hassan v Auditor General in which the Court held:
“The right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights…if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated.”
[39] Similarly, in Constitutional Petition No. E321 of 2021: Liburuwen Kasanguru Kweri v Beehive Media Limited, the Court held:
“122.Turning to the defamatory claim which is based on article 28 of the Constitution , it is apparent that the claim is based on whether article 31 of the Constitution is found have been infringed. I say so because in the event it is found that the article 31 rights were not infringed, then the claim on defamation will not stand.
123.Going by the holding in respect to the article 31 rights above, it is only prudent that the claim on constitutional defamation do await the outcome of the dispute on article 31 of the Constitution .”
[40] The right is also underscored in Article 10 of the International Covenant on Civil and Political Rights (ICCPR) which is applicable locally by dint of Article 2 of the Constitution.
[41] Given the all-encompassing nature of the right to dignity, it is pertinent, in the context of this case, to consider it alongside the right to freedom and security of the person under Article 29 and the right to privacy under Article 31 of the Constitution. Article 29 states that:
“Every person has the right to freedom and security of the person, which includes the right not to be—
(a) deprived of freedom arbitrarily or without just cause;
(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;
(c) subjected to any form of violence from either public or private sources;
(d) subjected to torture in any manner, whether physical or psychological;
(e) subjected to corporal punishment; or
(f) treated or punished in a cruel, inhuman or degrading manner.”
[42] On the other hand, Article 31 states:
“Every person has the right to privacy, which includes the right not to have—
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
[43] Therefore, I entirely agree with the position taken by Hon. Mativo, J. (as he then was) in M W K & another v Attorney General & 3 others that:
“Privacy fosters human dignity insofar as it is premised on and protects an individual’s entitlement to a ‘sphere of private intimacy and autonomy. The rights of equality and dignity are closely related as are the rights of dignity and privacy.”
[44] In Titus Barasa Makhanu v Police Constable Simon Kinuthia Gitau [2016] eKLR, it was held:
“Article 29 of the Constitution combines a right to freedom and security of the person with a right to be free from bodily and psychological integrity. It is essentially intended to protect the physical integrity and dignity of the individual. The rights not to be subjected to torture in any manner or not to be treated or punished in a cruel, inhuman or degrading manner are components of the right to freedom and security of the person. These two components (torture on the one hand and cruel, inhuman and degrading manner on the other) are, under Article 25(
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