1. What is before court is an Application by the Applicants brought by way of Chamber Summons pursuant to Articles 25(d) and 51(2) of the Constitution, section 389 of the Criminal Procedure Code and Rules 2 and 3 of the Criminal Procedure (Directions in the nature of Habeas Corpus) Rules. The prayer for Habeas Corpus having been dispensed with, the Applicants seek the following remaining orders:
a) Spent
b) Spent
c) Spent
d) Spent
e) Spent
f) Spent]
g) THAT the 1st and 2nd Respondents hereby be estopped from arresting, investigating, prosecuting, acquiring any information on students’ data either from the Applicants, its servants, agents and/or assigns until this matter is heard inter partes.
h) THAT the 1st and 2nd Respondent hereby be permanently estopped from arresting, investing, prosecuting, acquiring any information on students’ data either from the Applicants, its servants, agents and/or assigns without the proper authority and/consent from this Honourable court or the Ministry of Education, and to return all personal school documents and mobile phones being illegally held;
i) Spent; and
j) THAT the Honourable Court be pleased to grant any further orders that it may deem fit and in the best interest of the girls.
2.The application was based the following 20 grounds:
1. THAT on 7th day of April 2024, the 1st Respondent invaded and raided the 1st Applicant’s residence at Changamwe, and arrested him on the 2nd Respondent's authority and on the basis that he and the 2nd Applicant were part of a child/ human trafficking syndicate.
2. THAT by the date of the 1st applicant's arrest, he was the head coach of the 2nd Applicant's basketball and netball team and chosen guardian by the 2nd Applicant and with the parents, consent was taking care of some of the girls that make up the school's basketball and Netball team.
3. THAT the 1st Respondent detained the said girls identified as Cynthia Naomi Onbajo, Doris ALuoch and Catherine Atieno on the illusion that they were minors rescued from the 1st Applicant’s home by an authoritative body, as they were about to be trafficked.
4. THAT as supported by their birth certificates, it is evident that the said girls are of majority age and cannot be subjected to investigations or proceedings instituted at the children's court, more so birth certificates are conclusive evidence of age.
5. THAT on 8th April 2024, the 1st Applicant was arraigned at Tononoka Children Law Courts vide: Tononka MCCHMISC NO . 8026 OE 2024: THE DIRECTOR OF PUBLIC PROSECUTION VS PHILIP OMBAJO and MCCHISC NO.8028 OF 2024: THE DIRECTOR OF PUBLIC PROSECUTION VS KAYA TIWI HIGH SCHOOL AND PHLIIP OMBAJO, when the 2nd Respondent sought more time to conduct investigations
6.THAT on the said date, the Respondents informed court that they had detained the three girls with the intention to ascertain their ages, visit the schools where it was alleged they were going to, interview and record statements from them as the alleged victims.
7.THAT on 8th April- 2024, the court delivered its Ruling and ordered that the police forward the matter to the 2nd Respondent to prefer charges if any. The court also ordered that the 1st Applicant be released on a cash bail of Kshs. 100,000.00 with a personal surety and report to the police once every week to assist with the said investigations.
8. THAT the court thereafter issued the Respondents with a strict time frame of 5 days to complete its investigations and listed the matter for mention on 16th Apri1 2024 to confirm the progress of the investigations.
9.THAT on 16th April 2024, the matter was listed before court, however the same did not proceed as the Prosecutor in conduct of the matter was away on official duties and had failed to make directions for the said date.
10. THAT following the said attendance, the matter has been listed for mention on three different occasions, however the Respondents are yet to produce the said girls before any court of competent jurisdiction, the Ministry of Education and/or the Attorney General to issue an update on the said investigations .
11. THAT the Respondents have further denied the girls any contact with the outside world including their parents, guardians and 2nd Applicant as their school or regulatory bodies such as the Ministry of Education and/or the Attorney General
12. THAT it is unfortunate that they neglected to issue a report ON the well-being, location of its investigations.
13.THAT the arrest and/or detention of the three girls was done without the issuance and production of a valid warrant of arrest or search to validate a lawful arrest if any.
14. THAT the three girls are being held by the Respondent without any basis or the continued detention is illegal .
15 . THAT the 1st Respondent has denied the school, teachers, parents and/or guardians access to the three girls during the said detention period, which is ,and un illegal and unlawful.
15.THAT the continuation of the girls' detention interferes with a multitude of rights including their right to liberty, movement, education, and parental care as they are still in school which are set to reopen on Monday 29th ApriI 2024.
17. THAT all attempts made by the 1st Applicant, parents and/or guardians to have the three girls released have bore no fruit as the Respondents have resulted to intimidation tactics hence the need for this Application.
18. THAT the 1st Applicant, teachers, parents and/or guardians are afraid for their children's safety as S/Sgt Fredriek Mong'are, the officer in charge of the said raid and who abducted the three girls has never been availed before court or identified by the Respondents as one of their officers.
19.THAT it is only fair and in the interest of Justice that the Honourable Court grants the above sought orders and review its Judgment delivered on 1sth March 2024 and stay any consequential orders that may arise thereto.
20.THAT it is the orders in the interests sought of justice and equity to grant the orders.
3. In response to the Application, the 1st, 2nd and 4th Respondents filed a Replying Affidavit sworn by CPL Irene Oduor, the investigating officer into the case of Trafficking in persons contrary to section 3(3) as read with section 3(5) and promotion of trafficking contrary to section 5(d) of the Counter Trafficking in Persons Act, No. 8 of 2010.
4. The Affidavit was sworn on the 16th May, 2024 to the effect that a report was made through the DCI hotline number otherwise known as ‘fichua kwa DCI’ as number 0800722203 leading to the arrest of one suspect, the 1st Applicant, at National Housing Changamwe and three victims namely C.N, C.A. and D.A on the 7th of April, 2024.
5. The report was that the 1st Applicant has been recruiting minors from various parts of Kenya, transporting them and harboring them for exploitation.
6. Their position is that the intervention was necessary and lawful.
SUBMISSIONS
7. This Court on the 8th of July, 2024 issued orders to the effect that the Applicants were to file and serve their submissions within 3 days after which the Respondents had 7 days to file and serve theirs. In case of failure by either party to file, the other parties be at liberty to file theirs.
8. The Applicants rehashed their grounds and further raised issues as to the procedure that the Respondents followed. They argued that such proceedings and cases should be determined in a manner which includes effecting the steps as may be necessary for securing a Court order for the care and protection of the child in a place of safety or other alternative care in accordance with the Act and informing of the parents and/or guardians of the said allegations and its consequences including the taking of the said girls.
9. THAT In this instant suit, the Respondents' agents/ were dealing with girls who were not only considered to be minors but who were registered by the Ministry of Education as students of a public school registered within the Republic of Kenya. The Ministry of Education bears a duty to the girls by ensuring that they are protected as per the confines of the Constitution. The Respondents are yet to avail evidence before this court highlighting that the Ministry of Education was informed of the said charges and that it authorized and/or instigated the said investigations to be conducted. Being that the said girls were still in school and in the care of the Applicants, it was only fair that the Respondents adduced them with a child officer or an officer from the Ministry, who ensured that their care was properly catered for and that their mental health was not affected by the said investigations as it was to root out evidence of such a serious offence.
10. That The Respondents equally bore a duty to inform the said girls of the reasons why they were transported to a different location under the care of people or individual-s not known to them.
11. It is equally prudent to reiterate that the Respondents are yet to avail- the stage of their investigations even after the commencement of the three suits as the are no orders put in place to restrict them from conducting the said investigations, or informing the Applicants, their stakeholders and representatives of their progress and/or resolves.
12. That the Respondents not only abducted the said girls, but refused to allow the parents and/or guardians access to the said girls.
13. The respondents submitted that the Applicants are seeking a blanket order stopping the arrest, investigation and prosecution of anyone and everyone with regards to this case.
14. That Neither the Application nor the Affidavit sworn by the 1st Applicant adduces any evidence in support of these particular orders sought. They cited the case of Philip Osore Ogutu vs Michael Onyura Aringo & 2 Others [2013] [2013] eKLR which held that:
‘The petition and the Affidavit in support should disclose the petitioner’s cause of action and a cursory look at the two should reveal the petitioner’s case. For a petitioner to deserve an order for scrutiny then, as a starting point, the petition and the affidavit in support must contain concise statements of material facts upon which the claim of impropriety or illegality of the casting or counting of ballots is made”.
ANALYSIS
15. The court finds that most of the prayers that centered on habeas corpus have been dispensed with, and which habeas corpus is the core of the Application, prayer 7 as drafted is moot. So we only have prayer 8.
16. I must also point that the Applicants are blowing both hot and cold air. Where it suits them the rescued persons were not minors as proved by the birth certificates but where it does not fit their purposes , these were children.
17. Having analyzed all submissions ,The court is inclined to agree with the Respondents as indicated in their Replying Affidavit sworn by CPL Oduor from paragraph 6-13, the three girls who are victims of the 1st Applicant were not arrested but rescued and placed in temporary shelter as allowed by the law.
18. As regards prayer 8, on the arrest and blanket orders seeking to stop all investigations, I align myself with the court in Clement Kungu Waibara v Annie Wanjiku Kibeh & Another [2017] eKLR where it held that Orders sought and granted must be specific not blanket.
19. In addition, sections 24, 28 and 35 of the National Police Service Act provide for the functions of the Police and the DCI in investigation of crime, apprehension of offenders, enforcement of laws and regulations and collection of criminal intelligence among other functions.
20. It is trite law that orders prohibiting police investigation must be exercised sparingly such as where the criminal process is being abused. Courts ought not to usurp the constitutional mandate of the Respondents provided the Respondents act in a justifiable manner. The Court in Republic vs Commissionr of Police and Another exparte Michael Monari & Another [2012] eKLR held that:
“The police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court…As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”.
21. The Applicants have failed to prove that the investigations or the prosecution are being conducted contrary to public policy yet the Respondents herein have demonstrated that the investigations were as a result of public outcry channeled through the DCI hotline number.
22. The matter involved children and urgent intervention was necessary. It is also desirable that the authorities get to the bottom of the matter as cases of child trafficking must be handled keenly. The court can only step in to stop investigations where it has been shown that the other state agencies are acting beyond their scope or they are motivated by other issues such as malice or to steal a match in a civil case. None of that has been proved. the trial court is also well trained and will know if there are proper charges and if it has jurisdiction.
23. This position was echoed by the Court in Nairobi HC Judicial Review Application No. 78 of 2015: Republic vs Director of Public Prosecution & Another Ex-parte Chamanlal Vrajlal Kamani & 2 Others, where Hon. Odunga, J. expressed the view that:
“The court…ought not to usurp the Constitutional and Statutory mandate of the Respondent and the interested party to investigate and undertake prosecution in the exercise of the discretion conferred upon them. It was in recognition of this fact that the House of Lords in Director of Public Prosecutions vs Humphreys [1976] 2 All ER 497 at 511 cautioned that:
“A judge must keep out of the arena. He should not have or appear to have responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a Judge had power to decline to hear a case because he does not think it should be brought, then, it soon may be thought that the cases he allows to proceed are cases brought within his consent or approval…If there is a power…to stop a prosecution on indictment in limine, it is in my view a power that should be exercised in the most exceptional circumstances”.
24. Prayer 8 seeking to permanently estop the 1st and 2nd Respondent from arresting, investigating, prosecuting, acquiring any information on students’ data akin to allowing a suspect to run amok without the resulting repercussions. even if they believe in their innocence that is not a proper reason to halt investigations.
25. In this case, the Applicants have not proved any violation of rights in the conduct of Respondents' duties. they alleged that the minors privacy was invaded but the investigations sought to be halted are as against the applicants..
26. As regards the documents held, this court ordered that the same be released. The Respondent stated that they had complied. If there are any identification or academic documents belonging to the minors, they should be released as per the prior orders given.
27. The court finds that the Respondents herein, therefore, were conducting their investigations and prosecution within the ambits of the law and this Court cannot in good faith, grant the remaining orders as sought by the Applicants.
29. This Application as it stands is be dismissed with no orders as to costs since some orders were allowed at the preliminary stage.
Dated, signed and delivered in Open Court/
online through MS TEAMS,
this ……20th………day of ………December………2024
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of: -
…………………………….
…………………………….
…………………………….
HON. LADY JUSTICE W. K. MICHENI
JUDGE