Introduction
1. The Petition dated 9 th November 2017 is supported by the Petitioner’s Affidavit in support of even date, Supplementary Affidavit dated 24 th June 2019 and Further Affidavit dated 8 th November 2021.
2. The Petition challenges the arrest, detention and prosecution of the Petitioner by the Respondents.
3. The Petitioner seeks the following reliefs: -
a) A declaration that the assault, shooting, wounding and injuring of the Petitioner in the abdomen on 9/10/2013 by officers of the 1 st and 2 nd respondents was a threat to the fundamental right of the Petitioner to life which includes the right to a livelihood contrary to Article 26(1) and (3) of the Constitution.
b) A declaration that the assault, shooting, wounding and injuring of the Petitioner in the abdomen on 9/10/2013 by officers of the 1 st and 2 nd respondents was a violation of the fundamental right of the Petitioner to the security of the person including the freedom not to be subjected to any form of violence and freedom from cruel, unhuman and degrading treatment contrary to Article 29(c) and (f) of the Constitution.
c) A declaration that the arrest and detention of the Petitioner by officers of the 1 st and 2 nd Respondents for five (5) days between 9/10/2013 and 14/10/2013 without any reasonable or lawful justification and without giving the Petitioner any reasons thereof was a violation of the fundamental right of the Petitioner of the security of the person particularly the right not to be deprived of personal freedom arbitrarily or without just cause and a violation of the rights of the petitioner as an arrested person contrary to Articles 29(a) and 49(1)(a)(i) of the Constitution.
d) A declaration that the chaining of the Petitioner to the hospital bed at Kenyatta National Hospital ward for three (3) days between 11/10/2013 and 13/10/2013 without any reasonable or lawful justification whatsoever was a violation of the fundamental rights of the Petitioner to human dignity and to have that dignity respected, the fundamental right of the Petitioner to the security of the person particularly the rights not to be deprived of personal freedom arbitrarily or without just cause and the freedom from cruel, inhuman and degrading treatment contrary to Articles 28 and 29(a) and (f) of the Constitution.
e) A declaration that the prosecution of the Petitioner on pretended, fabricated, unfounded, trumped up and malicious charges before the Chief Magistrate’s Court at Nairobi, Milimani Law Courts, in Criminal Case No. 1639 of 2013 was a violation of the fundamental right of the Petitioner to equal protection and equal benefit of the law contrary to Articles 27(1) and (2) of the Constitution and was in the whole circumstances of the case an abuse of the criminal law, an abuse of the process of court and a malicious prosecution.
f) Special damages of Kshs. 398,005/-
g) An award of general damages as the court shall assess consequent to the declaration of violation of fundamental rights of the petitioner in prayers (a) and (e) above.
h) An award of exemplary, aggravated and/or vindicatory damages for blatant, callous, oppressive and highhanded violation of constitutional fundamental rights and freedoms of the Petitioner by officers of the Government.
i) Costs of the Petition.
j) Interest on all monetary awards.
4. In opposition to the petition, the 1 st Respondent filed a Reply to Petition dated 5 th October 2018 and Supplementary Affidavit dated 8 th February 2022 whereas the 3 rd respondent filed a Replying Affidavit dated 24 th July 2018.
5. The matter proceeded by viva voce evidence (live oral testimony).
The Petitioner’s Case
6. The Petitioner is a male adult of sound mind and a Kenyan citizen is a resident of Mukuyu Estate, Murang’a town. He testified as PW1 began by adopting his witness statement dated 28 th November 2018. He stated that at the material time, he was working as a conductor of motor vehicle registration number KAR 236J Nissan Matatu plying route 23 to Westlands from Koja Mosque in Nairobi .
7. On 9/10/2013 at about 9 am, they had parked their vehicle at their usual stage on Koja Lane when he decided to walk to a nearby hotel to take tea. Suddenly, he was confronted by two askaris of the 1st respondent who falsely accused him of spitting in the street. PW1 stated that he politely protested his innocence but the askaris informed him that they had to arrest him for the alleged spitting.
8. He then requested the two askaris to escort him back to the vehicle to remove face of the car radio because the driver was not in the car but they refused. The Petitioner’s colleagues who had seen what was happening ignited some commotion prompting the askaris to leave him alone but with a warning they would return soon.
9. After approximately twenty minutes, PW1 further testified that the askaris indeed returned in a pick-up truck owned by the 1 st Respondent registration number of the 1 st Respondent, KAW 718Z . The vehicle was full of askaris of the 1 st Respondent, accompanied by some armed police officers. The askaris of the 1 st respondent were led by the two who had previously accosted him PW 1. They grabbed PW 1 viciously beat him up and tossed him to the ground. As PW1 tried to get up and free himself from the violent attacks by the askaris, his abdomen was shot with a bullet he became numb with pain. The said askaris and the police officers shoved him into their pick-up truck and began patrolling the streets with him as he continued to bleed.
10. PW1 stated that the askaris arrested other people and took them to City Court but they left him lying flat in the pickup truck because wasn’t able to move. Afterwards they took him to Ngaira City Council Dispensary also known as Rhodes Clinic where one of the officers falsely told the nurse that his wound had been inflicted by a knife. However, the nurses disputed and insisted that the officers tell them the truth. That is when they admitted that it was a gunshot wound. The nurses washed his wound, dressed it up and put him on a drip before referring him to Kenyatta National Hospital where he was admitted as an emergency case, x-rayed, put on ultra sound examination and admitted to the theatre at about 4pm. After the surgery, he was admitted to the ward.
11. PW1 testified that on 11/10/2013 police officers from Central Police Station went to the ward, handcuffed him to the hospital bed. They informed him that they were doing that to ensure that he was not whisked away by the askaris of the 1 st respondent. He further testified that he remained handcuffed to the bed guarded by two regular police officers until 13/10/2013 when he was discharged after paying his medical bill. Upon discharge from the hospital and without being given any reasons, he was placed under arrest and escorted by the police officers to Central Police Station where he recorded his statement of the events of 9/10/2013. He stated that he was further locked up at Central Police Station without being given any reasons or informed of any offence that he was suspected of having committed.
12. PW1 testified that on 14/10/2013 he was escorted to the Nairobi Chief Magistrate’s Court at Milimani Law Courts where he was arraigned in Criminal Case No. 1639 of 2013 charged with three fabricated, trumped up and malicious charges of incitement to violence contrary to Section 96 of the Penal Code, wilfully obstructing a police officer contrary to section 254(b) of the Penal Code and assault causing bodily harm contrary to Section 251 of the Penal Code to which he entered a plea of not guilty to all counts and was granted bail.
13. The particulars of the charge on Count I of incitement to violence falsely alleged that “on the 8 th day of October 2013, at about 10.00am along Moi avenue in Nairobi within Nairobi County, jointly with others not before the court, without lawful excuse uttered words “Mwizi” which indicated that it was desirable to beat Peter Kamau Mwangi an act which was calculated to lead to the assault of Peter Kamau Mwangi.”
14. The particulars of Count II provided that “on the 8 th day of October 2013 at about 10am along Moi Avenue in Nairobi within Nairobicounty jointly with others not before the court, wilfully obstructed No. 52893 PC Willand Chibuyi and No. 44797 PC Charles Osiri police officers who at the time of the said obstruction were acting in their due execution of their duties.”
15. In respect of Count III, the particulars were that “on the 8 th day of October 2013, at about 10 am along Moi Avenue in Nairobi within Nairobi County jointly with others not before court, unlawfully assaulted Peter Kamau Mwangi thereby occasioning him actual bodily harm.
16. PW 1 asserted that these trumped-up charges were preferred against him by the police to cover up for the offences committed against him and shield the violation of his rights by the askaris of the 1 st respondent and regular police officers from 9/10/2013 to 13/10/2013 and to frustrate the investigation of the askaris and the police officers involved. PW 1 further testified that the 3 rd respondent continued to prosecute him on all the said charges as drawn until 1/9/2015 when the charge sheet was amended to read the date of the alleged offences as 9/10/2013 instead of 8/10/2013.
17. The witness testified that after hearing all the witnesses of the prosecution on 16/9/2016, the trial court delivered its ruling and acquitted him under Section 210 of the Criminal Procedure Code on counts I and II but placed him on his defence on count III. After giving his defence on the said count and calling his driver Cyrus Mutunga Mbahoni as his witness, on 10/11/2016 the trial court acquitted him under Section 215 of the Criminal Procedure Code for lack of proof beyond reasonable doubt.
18. PW 1 testified that his arrest, police detention for five days and prosecution was totally unlawful, unjustified, malicious, callous, and wanton abuse of public power and the law. That it was deliberately intended and designed to harass, intimidate, suppress and silence him from pursuing justice for the crimes of assault, unlawful shooting and wounding committed against him by the law enforcement agents.
19. PW1 testified that to date he is not aware of any legal action taken by the police against the askaris of the 1 st respondent and the police officers who assaulted and shot him and he has never been called as a witness against the said officers. As a consequence of being unlawfully assaulted, shot and wounded, he was hospitalized and continues to attend clinics. He incurred Kshs. 38,005/- in medical expenses. He further procured legal services of an advocate to the tune of Kshs. 350,000/-. He lost his job as a matatu conductor was the only means of sustaining himself in Nairobi and was thus compelled to relocate to his rural home in the county of Murang’a in the beginning of June 2015. Furthermore, the witness testified that he used to commute from Murang’a to Nairobi to attend his case when it came up for mention and hearing whereby, he incurred Kshs. 10,000/- as travelling and upkeep expenses. The witness testified that for the three years that the Criminal Case No. 1639 of 2013 was pending trial and determination in court, he lived with the embarrassing label of being a criminal suspect and an accused person.
The 1 st Respondent’s Case.
20. DW1, Kipsang Kosgei , adopted his witness statement dated 5 th November 2018. He testified that he is the Director of City Inspectorate under the Nairobi City County. DW1 testified that according to the 1 st Respondent’s by laws and regulations, the officers of the 1 st Respondent are not authorized to carry any ammunition thus, the allegations against their officers are misplaced and untrue. The witness further testified that the petitioner did not specifically name the said officers who allegedly shot him but only referred to them as county askaris.
21. DW1 asserted that the petitioner failed to demonstrate any violations of the law and human rights committed by the county askaris against him and therefore his petition has no tangible cause of action against the 1 st Respondent. The witness further stated that the 1 st Respondent only deals with matters stipulated in the county by laws and which have no provisions for Penal Code offences which fall under the category of the offences alleged by the Petitioner and thus the Petitioner’s claim should be directed towards the 2 nd Respondent.
The 3 rd Respondent’s Case
22. The 3 rd Respondent filed and relied on affidavit evidence; it did not call any witness. Prosecution Counsel for the 3 rd respondent revealed that the decision to charge the Petitioner (PW1) was made by the 3 rd respondent upon submission of the investigation file by the 2 nd respondent after which charges were preferred against him in Milimani Criminal Case No. 1639 of 2013. The 3 rd Respondent stated that the Petitioner (PW 1) was charged with the offences of incitement to violence contrary to section 96 of the Penal Code, wilfully obstructing a police officer contrary to Section 254(b) of the Penal Code and assault after a review of the investigation file was done and found that there was sufficient evidence to have him prosecuted.
23. The 3 rd Respondent deponed that the prosecution was instituted with reasonable and probable cause and was not actuated by any malice as the facts were independently reviewed and based on the evidence, the decision to charge was made. The 3 rd Respondent contended that the fact that the Petitioner (PW 1) was placed on his defence by the trial court is an indication that the prosecution had a prima facie case that had a realistic prospect of conviction and vindicates the prosecution’s decision to charge the Petitioner.
24. The 3 rd Respondent averred that the fact that a case beyond reasonable doubt was not proved against the petitioner is not an indicator that there was no case against him. Further, there was no malice in the Petitioner’s prosecution since due process was observed and the petitioner accorded all the fair trial processes. The 3 rd Respondent averred that under Article 157 of the Constitution, the DPP does not require the consent of any person or authority to commence criminal proceedings against any person. Further in exercise of its powers or functions, the DPP shall not be under the direction of any person or authority.
Petitioner’s Submissions
25. The Petitioner submitted that the 2 nd respondent did not file any response and thus his claims against the 2 nd respondent are wholly undefended. The petitioner argued that although the 3 rd respondent filed a replying affidavit, the deponent did not testify before court and therefore there is no sustainable defence on his claim against the 3 rd respondent. Reliance was placed in the case of Mary Njeri Murigi vs Peter Macharia & Another [2016] eKLR where the court held:-
I am in total agreement with the decision by my learned brother Judge G.V. Odunga J. in Linus Nganga Kiongo & 3 Others vs Town Council of Kikuyu [2012] eKLR on the consequences of a party failing to call evidence wherein he stated:……Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in doing so the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged……
26. I am in agreement with the above persuasive exposition that indeed, it is not sufficient for a party and more specifically the defendants in this case to have made strong statements of defence on paper. Their defence remains mere allegations not proved by evidence as required under Sections 107 and 108 of the Evidence Act. In addition, pleadings, answers in cross examination and or submissions do not amount to evidence or defence. It therefore follows that however well choreographed the submissions are and however serious the cross examination was and however fervent and vehement the statement of defence is, are not evidence.
27. Similar reliance was placed in the case of Kimani & Another (Suing as the legal representatives of the Estate of the late Jacob Kimani Kamande (Deceased) vs Macharia [2023] KEHC 1701 (KLR) .
28. The Petitioner further argued that the 4 th Respondent although represented in the course of the proceedings never filed a response to the petition. Thus, the 2 nd , 3 rd and 4 th respondents who by Article 156(4) of the Constitution should be represented by the 4 th respondent, did not defend the Petition.
29. The Petitioner identified five issues of determination as whether the Petition is properly before the court; whether the 1 st Respondent is liable in this petition; whether the petitioner has proved his case to the required standard; is the petitioner entitled to damages and what is the quantum thereof and who should bear the costs of the petition.
30. On the first issue, the Petitioner submitted that although the 1 st Respondent argued that he ought to have exhausted alternative dispute resolution mechanisms before approaching the instant court, the 1 st respondent did not disclose the particular alternative dispute resolution mechanism that he ought to have exhausted. The Petitioner argued that the petition is properly before the court and the violations pleaded fall squarely within the jurisdiction of the court under Articles 22(1), 23 and 165(3)(a),(b),(d)(i),(ii) of the Constitution.
31. The Petitioner submitted that the evidence on record reveals that he was initially unlawfully assaulted and subjected to violence by officers of the 1 st Respondent and his unlawful arrest was orchestrated by officers of the 1 st Respondent and carried out by a combined squad of officers of the 1 st and 2 nd Respondents. He further narrated how officers of the 1 st and 2 nd Respondents unleashed brutal violence on him while he was unarmed. The Petitioner further argued that his evidence in the criminal trial was corroborated by his driver DW2 and PW2 PC Charles Osiri who stated that he realized that one person was injured as he was engaged in a brawl with the city council officers. The Petitioner cited Articles 26 and 29 of the Constitution and submitted that the 1 st Respondent’s officers are liable for the unlawful violence, assault and unlawful arrest and deprivation of personal liberty.
32. The Petitioner asserted that the assault, shooting, wounding and injuring in his abdomen by the officers of the 1 st and 2 nd Respondents are a threat to his fundamental right to life which includes the right to a livelihood, a violation of his fundamental right to the security of the person including the freedom from any form of violence and freedom from cruel, unhuman and degrading treatment contrary to Articles 26(1),(3) and 29(c) and (f) of the Constitution. As a consequence of the violence and injuries inflicted on him, he was taken for medical attention by the same officers and ultimately admitted at KNH. The Petitioner asserted that he produced his medical records including a medical report from KNH which shows that he had a gunshot wound on the lower abdomen and that surgery was conducted on him and from the wound a plastic shell and 6 rubber bullets were retrieved . Furthermore, it was conceded by the officers of the 1 st and 2 nd Respondents that he was shot by police officer PW2 PC Charles Osiri . PW3 Willard Chibui on cross examination explicitly stated that he was shot by PC Charles Osiri and PW5, Cpl Elias Kiptum, the investigating officer on cross examination testified that PC Charles Osiri shot the Petitioner as he was the only one who had a rubber bullet gun.
33. The Petitioner argued that no legal justification was given during the criminal trial and in the instant court as to why he was shot. Instead before the subordinate court, officers of the 1 st and 2 nd respondents concocted the allegations that he was shot as he assaulted PW1 while resisting arrest. The learned magistrate saw through the falsehoods and rejected the same in the judgment.
34. The petitioner referred to the case of Charles Munyeki Kimiti vs Joel Mwenda & 3 Others [2010] eKLR where the Court of Appeal held as follows on the legal limits of the use of force by law enforcement agents:-
We are aware, however that Section 21 of the Criminal Procedure Code all was the police or a private person who endeavours to arrest a person suspected of having committed a crime to use all means necessary to effect arrest where arrest is forcibly resisted. However, Section 22(3) of the CPC forbids the use of unreasonable force in effecting arrest in the following terms: “Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.” Whether or not police have used excessive force in effecting arrest is a matter of degree dependent on the peculiar circumstances of each case….The law only allows the police to use all means necessary to effect arrest and even then, they are not allowed to use greater force than reasonable or necessary in the particular circumstances.
35. The petitioner revealed that the case of Charles Munyeki Kimiti vs Joel Mwenda & 3 Others (supra) was decided on 5 th March 2010 before the promulgation of the 2010 Constitution and the enactment of the National Police Service Act 2011. By virtue of Article 29(c) of the Constitution , the NPSA aligned itself to the nonviolent ideal under the article. Section 61 of the Act explicitly provides that the police service shall be nonviolent in execution of its duties and may use force or firearms only as a regulated last resort. It provides: -
(1) Subject to subsection (2), a police officer shall perform the functions and exercise the powers conferred by the Constitution and this Act by use of non-violent means.
(2) Despite subsection (1), a police officer may use force and firearms in accordance with the rules on the use of force and firearms contained in the Sixth Schedule.
36. The conditions as to the use of force in the Sixth Schedule provide thus:
(1) A police officer shall always attempt to use non violent means first and force may only be employed when non violent means are ineffective o without any promise of achieving the intended result.
(2) The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
(3) When the use of force results in injuries-
(a) the police officers present shall provide medical assistance immediately and unless there are good reasons, failing to do so shall be a criminal offence; and
(b) shall notify relatives or close friends of the injured or affected persons.
(4) A police officer who uses any form of force shall immediately report to the officer’s superior explaining the circumstances that necessitated the use of force and the supervisor shall judge the rightfulness and decide the next step, subject to these regulations.
(5) Any use of force that leads to death, serious injury and other grave consequences shall be reported immediately by the officer in charge or another director superior of the person who caused the death or injury, to the Independent Police Oversight authority who shall investigate the case.
37. Further, the conditions as to the use of firearms in part B of the Sixth Schedule of the NPSA are stringent on when firearms may be used by police officers as follows:-
(1) Firearms may only be used when less extreme means are inadequate and for the following purposes-
(a) saving or protecting the life of the officer or other person; and
(b) in self defence or in defence of other person against imminent threat of life or serious injury.
(2) An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed except-
(a) where doing so would place the officer or the other person at risk of death or serious harm; or
(b) it would be clearly inappropriate or pointless in the circumstances.
(3) Any use of firearm, even if there is no injury, shall immediately be reported to the officer’s superior.
(4) Any use of firearms that leads to death, serious injury and other grave consequences shall be reported by the officer in charge or another direct supervisor of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.
38. The Petitioner submitted that he narrated how the officers of the 1 st and 2 nd respondents intentionally unleashed brutal violence on him while he was unarmed. The violence was premeditated as the first batch of officers of the 1 st respondent first went away only to return reinforced by officers of the 2 nd respondent who shot him. Further the concocted stories by PW1 Peter Kamau Mwangi and PW4 Robert Asing’a at the criminal trial that PW1 had been attacked by him who he had arrested for hawking were dismissed by the trial magistrate as utterly false. Additionally, the record of the criminal trial is also explicit that no report was made to the immediate superiors on the use of firearms as required by the Sixth schedule of the NPSA. Thus, the Petitioner submitted that his right to life under Article 26(1) and (3) of the Constitution was threatened by the violence and the shooting inflicted on him and his fundamental right to freedom from violence under Article 29(c) was wantonly and recklessly violated without any justification. Further, his right to life was further violated by the consequence of his loss of ability to work and earn a livelihood as he nursed injuries inflicted on him.
39. The petitioner asserted that he presented unchallenged evidence before the learned magistrate in the criminal case and the instant court that while he was admitted in the ward at KNH, on 11 th October 2013, police officers paid him a visit, handcuffed him and placed him under their guard during the day ostensibly to stop officers of the 1 st respondent from taking him away. The said evidence of him being handcuffed in the ward as corroborated by DW2 on cross examination. The Petitioner cited Articles 28 and 29 of the Constitution and argued that handcuffing of a suspect must be justified under the law. Furthermore Article 51 of the Constitution preserves all fundamental rights and freedoms of detained persons, those held in custody or imprisoned except those rights and freedoms that are inconsistent with the fact of lawful detention. Part D of the Sixth Schedule of the NPSA on preventing escape prescribe circumstances that justify mechanical restraint by handcuffs.
(1) A police officer may use instruments of restraint to prevent the escape of a detainee or prisoner-
(a) to prevent escape of a detainee; and
(b) to prevent the detainee from self
injury or injuring others or damaging property
(2) An instrument of restraint may-
(a) not be applied for longer than necessary to secure the purpose for which it is used;
(b) not as a punishment; and
(c) Shall be removed immediately after the purpose for which it is used is achieved.
40. Section 24 of the Criminal Procedure Code prohibits the use of unnecessary restraint on an arrested person.
41. The petitioner argued that the 2 nd respondent has not given reasons for handcuffing him in the hospital ward for 3 days. Further, there cannot be any legally acceptable reason for handcuffing him in a hospital bed as a post surgery patient. Reliance was placed in the case of Citizens for Democracy vs State of Assam & Others, Writ Petition (C) No. 22 of 1995 , where perceived high risk prisoners were handcuffed in a hospital ward, the Supreme Court of India reiterated its earlier decisions that the handcuffing of the prisoners violated their fundamental rights and freedoms to equality before the law, freedom and right to life, thus:
This Court in Shukla’s case categorically held that handcuffing is prima facie inhuman, unreasonable, arbitrary and as such repugnant to article 21 of the Constitution of India….This Court in Shukla’s case speaking through Krishna Iyer J. laid down the law as under: Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer..Since there are other ways of ensuring security, it can be laid down as rule that handcuffs or other fetters shall not be forced on the person of an undertrial prisoner ordinarily….We lay down as necessarily implicit in Arts 14 and 19 that when there is no compulsive need to fetter a person’s limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Art 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 (see Sunil Batra, supra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe keeping…But even h
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1. The Petition dated 9 th November 2017 is supported by the Petitioner’s Affidavit in support of even date, Supplementary Affidavit dated 24 th June 2019 and Further Affidavit dated 8 th November 2021.
2. The Petition challenges the arrest, detention and prosecution of the Petitioner by the Respondents.
3. The Petitioner seeks the following reliefs: -
a) A declaration that the assault, shooting, wounding and injuring of the Petitioner in the abdomen on 9/10/2013 by officers of the 1 st and 2 nd respondents was a threat to the fundamental right of the Petitioner to life which includes the right to a livelihood contrary to Article 26(1) and (3) of the Constitution.
b) A declaration that the assault, shooting, wounding and injuring of the Petitioner in the abdomen on 9/10/2013 by officers of the 1 st and 2 nd respondents was a violation of the fundamental right of the Petitioner to the security of the person including the freedom not to be subjected to any form of violence and freedom from cruel, unhuman and degrading treatment contrary to Article 29(c) and (f) of the Constitution.
c) A declaration that the arrest and detention of the Petitioner by officers of the 1 st and 2 nd Respondents for five (5) days between 9/10/2013 and 14/10/2013 without any reasonable or lawful justification and without giving the Petitioner any reasons thereof was a violation of the fundamental right of the Petitioner of the security of the person particularly the right not to be deprived of personal freedom arbitrarily or without just cause and a violation of the rights of the petitioner as an arrested person contrary to Articles 29(a) and 49(1)(a)(i) of the Constitution.
d) A declaration that the chaining of the Petitioner to the hospital bed at Kenyatta National Hospital ward for three (3) days between 11/10/2013 and 13/10/2013 without any reasonable or lawful justification whatsoever was a violation of the fundamental rights of the Petitioner to human dignity and to have that dignity respected, the fundamental right of the Petitioner to the security of the person particularly the rights not to be deprived of personal freedom arbitrarily or without just cause and the freedom from cruel, inhuman and degrading treatment contrary to Articles 28 and 29(a) and (f) of the Constitution.
e) A declaration that the prosecution of the Petitioner on pretended, fabricated, unfounded, trumped up and malicious charges before the Chief Magistrate’s Court at Nairobi, Milimani Law Courts, in Criminal Case No. 1639 of 2013 was a violation of the fundamental right of the Petitioner to equal protection and equal benefit of the law contrary to Articles 27(1) and (2) of the Constitution and was in the whole circumstances of the case an abuse of the criminal law, an abuse of the process of court and a malicious prosecution.
f) Special damages of Kshs. 398,005/-
g) An award of general damages as the court shall assess consequent to the declaration of violation of fundamental rights of the petitioner in prayers (a) and (e) above.
h) An award of exemplary, aggravated and/or vindicatory damages for blatant, callous, oppressive and highhanded violation of constitutional fundamental rights and freedoms of the Petitioner by officers of the Government.
i) Costs of the Petition.
j) Interest on all monetary awards.
4. In opposition to the petition, the 1 st Respondent filed a Reply to Petition dated 5 th October 2018 and Supplementary Affidavit dated 8 th February 2022 whereas the 3 rd respondent filed a Replying Affidavit dated 24 th July 2018.
5. The matter proceeded by viva voce evidence (live oral testimony).
The Petitioner’s Case
6. The Petitioner is a male adult of sound mind and a Kenyan citizen is a resident of Mukuyu Estate, Murang’a town. He testified as PW1 began by adopting his witness statement dated 28 th November 2018. He stated that at the material time, he was working as a conductor of motor vehicle registration number KAR 236J Nissan Matatu plying route 23 to Westlands from Koja Mosque in Nairobi .
7. On 9/10/2013 at about 9 am, they had parked their vehicle at their usual stage on Koja Lane when he decided to walk to a nearby hotel to take tea. Suddenly, he was confronted by two askaris of the 1st respondent who falsely accused him of spitting in the street. PW1 stated that he politely protested his innocence but the askaris informed him that they had to arrest him for the alleged spitting.
8. He then requested the two askaris to escort him back to the vehicle to remove face of the car radio because the driver was not in the car but they refused. The Petitioner’s colleagues who had seen what was happening ignited some commotion prompting the askaris to leave him alone but with a warning they would return soon.
9. After approximately twenty minutes, PW1 further testified that the askaris indeed returned in a pick-up truck owned by the 1 st Respondent registration number of the 1 st Respondent, KAW 718Z . The vehicle was full of askaris of the 1 st Respondent, accompanied by some armed police officers. The askaris of the 1 st respondent were led by the two who had previously accosted him PW 1. They grabbed PW 1 viciously beat him up and tossed him to the ground. As PW1 tried to get up and free himself from the violent attacks by the askaris, his abdomen was shot with a bullet he became numb with pain. The said askaris and the police officers shoved him into their pick-up truck and began patrolling the streets with him as he continued to bleed.
10. PW1 stated that the askaris arrested other people and took them to City Court but they left him lying flat in the pickup truck because wasn’t able to move. Afterwards they took him to Ngaira City Council Dispensary also known as Rhodes Clinic where one of the officers falsely told the nurse that his wound had been inflicted by a knife. However, the nurses disputed and insisted that the officers tell them the truth. That is when they admitted that it was a gunshot wound. The nurses washed his wound, dressed it up and put him on a drip before referring him to Kenyatta National Hospital where he was admitted as an emergency case, x-rayed, put on ultra sound examination and admitted to the theatre at about 4pm. After the surgery, he was admitted to the ward.
11. PW1 testified that on 11/10/2013 police officers from Central Police Station went to the ward, handcuffed him to the hospital bed. They informed him that they were doing that to ensure that he was not whisked away by the askaris of the 1 st respondent. He further testified that he remained handcuffed to the bed guarded by two regular police officers until 13/10/2013 when he was discharged after paying his medical bill. Upon discharge from the hospital and without being given any reasons, he was placed under arrest and escorted by the police officers to Central Police Station where he recorded his statement of the events of 9/10/2013. He stated that he was further locked up at Central Police Station without being given any reasons or informed of any offence that he was suspected of having committed.
12. PW1 testified that on 14/10/2013 he was escorted to the Nairobi Chief Magistrate’s Court at Milimani Law Courts where he was arraigned in Criminal Case No. 1639 of 2013 charged with three fabricated, trumped up and malicious charges of incitement to violence contrary to Section 96 of the Penal Code, wilfully obstructing a police officer contrary to section 254(b) of the Penal Code and assault causing bodily harm contrary to Section 251 of the Penal Code to which he entered a plea of not guilty to all counts and was granted bail.
13. The particulars of the charge on Count I of incitement to violence falsely alleged that “on the 8 th day of October 2013, at about 10.00am along Moi avenue in Nairobi within Nairobi County, jointly with others not before the court, without lawful excuse uttered words “Mwizi” which indicated that it was desirable to beat Peter Kamau Mwangi an act which was calculated to lead to the assault of Peter Kamau Mwangi.”
14. The particulars of Count II provided that “on the 8 th day of October 2013 at about 10am along Moi Avenue in Nairobi within Nairobicounty jointly with others not before the court, wilfully obstructed No. 52893 PC Willand Chibuyi and No. 44797 PC Charles Osiri police officers who at the time of the said obstruction were acting in their due execution of their duties.”
15. In respect of Count III, the particulars were that “on the 8 th day of October 2013, at about 10 am along Moi Avenue in Nairobi within Nairobi County jointly with others not before court, unlawfully assaulted Peter Kamau Mwangi thereby occasioning him actual bodily harm.
16. PW 1 asserted that these trumped-up charges were preferred against him by the police to cover up for the offences committed against him and shield the violation of his rights by the askaris of the 1 st respondent and regular police officers from 9/10/2013 to 13/10/2013 and to frustrate the investigation of the askaris and the police officers involved. PW 1 further testified that the 3 rd respondent continued to prosecute him on all the said charges as drawn until 1/9/2015 when the charge sheet was amended to read the date of the alleged offences as 9/10/2013 instead of 8/10/2013.
17. The witness testified that after hearing all the witnesses of the prosecution on 16/9/2016, the trial court delivered its ruling and acquitted him under Section 210 of the Criminal Procedure Code on counts I and II but placed him on his defence on count III. After giving his defence on the said count and calling his driver Cyrus Mutunga Mbahoni as his witness, on 10/11/2016 the trial court acquitted him under Section 215 of the Criminal Procedure Code for lack of proof beyond reasonable doubt.
18. PW 1 testified that his arrest, police detention for five days and prosecution was totally unlawful, unjustified, malicious, callous, and wanton abuse of public power and the law. That it was deliberately intended and designed to harass, intimidate, suppress and silence him from pursuing justice for the crimes of assault, unlawful shooting and wounding committed against him by the law enforcement agents.
19. PW1 testified that to date he is not aware of any legal action taken by the police against the askaris of the 1 st respondent and the police officers who assaulted and shot him and he has never been called as a witness against the said officers. As a consequence of being unlawfully assaulted, shot and wounded, he was hospitalized and continues to attend clinics. He incurred Kshs. 38,005/- in medical expenses. He further procured legal services of an advocate to the tune of Kshs. 350,000/-. He lost his job as a matatu conductor was the only means of sustaining himself in Nairobi and was thus compelled to relocate to his rural home in the county of Murang’a in the beginning of June 2015. Furthermore, the witness testified that he used to commute from Murang’a to Nairobi to attend his case when it came up for mention and hearing whereby, he incurred Kshs. 10,000/- as travelling and upkeep expenses. The witness testified that for the three years that the Criminal Case No. 1639 of 2013 was pending trial and determination in court, he lived with the embarrassing label of being a criminal suspect and an accused person.
The 1 st Respondent’s Case.
20. DW1, Kipsang Kosgei , adopted his witness statement dated 5 th November 2018. He testified that he is the Director of City Inspectorate under the Nairobi City County. DW1 testified that according to the 1 st Respondent’s by laws and regulations, the officers of the 1 st Respondent are not authorized to carry any ammunition thus, the allegations against their officers are misplaced and untrue. The witness further testified that the petitioner did not specifically name the said officers who allegedly shot him but only referred to them as county askaris.
21. DW1 asserted that the petitioner failed to demonstrate any violations of the law and human rights committed by the county askaris against him and therefore his petition has no tangible cause of action against the 1 st Respondent. The witness further stated that the 1 st Respondent only deals with matters stipulated in the county by laws and which have no provisions for Penal Code offences which fall under the category of the offences alleged by the Petitioner and thus the Petitioner’s claim should be directed towards the 2 nd Respondent.
The 3 rd Respondent’s Case
22. The 3 rd Respondent filed and relied on affidavit evidence; it did not call any witness. Prosecution Counsel for the 3 rd respondent revealed that the decision to charge the Petitioner (PW1) was made by the 3 rd respondent upon submission of the investigation file by the 2 nd respondent after which charges were preferred against him in Milimani Criminal Case No. 1639 of 2013. The 3 rd Respondent stated that the Petitioner (PW 1) was charged with the offences of incitement to violence contrary to section 96 of the Penal Code, wilfully obstructing a police officer contrary to Section 254(b) of the Penal Code and assault after a review of the investigation file was done and found that there was sufficient evidence to have him prosecuted.
23. The 3 rd Respondent deponed that the prosecution was instituted with reasonable and probable cause and was not actuated by any malice as the facts were independently reviewed and based on the evidence, the decision to charge was made. The 3 rd Respondent contended that the fact that the Petitioner (PW 1) was placed on his defence by the trial court is an indication that the prosecution had a prima facie case that had a realistic prospect of conviction and vindicates the prosecution’s decision to charge the Petitioner.
24. The 3 rd Respondent averred that the fact that a case beyond reasonable doubt was not proved against the petitioner is not an indicator that there was no case against him. Further, there was no malice in the Petitioner’s prosecution since due process was observed and the petitioner accorded all the fair trial processes. The 3 rd Respondent averred that under Article 157 of the Constitution, the DPP does not require the consent of any person or authority to commence criminal proceedings against any person. Further in exercise of its powers or functions, the DPP shall not be under the direction of any person or authority.
Petitioner’s Submissions
25. The Petitioner submitted that the 2 nd respondent did not file any response and thus his claims against the 2 nd respondent are wholly undefended. The petitioner argued that although the 3 rd respondent filed a replying affidavit, the deponent did not testify before court and therefore there is no sustainable defence on his claim against the 3 rd respondent. Reliance was placed in the case of Mary Njeri Murigi vs Peter Macharia & Another [2016] eKLR where the court held:-
I am in total agreement with the decision by my learned brother Judge G.V. Odunga J. in Linus Nganga Kiongo & 3 Others vs Town Council of Kikuyu [2012] eKLR on the consequences of a party failing to call evidence wherein he stated:……Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in doing so the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged……
26. I am in agreement with the above persuasive exposition that indeed, it is not sufficient for a party and more specifically the defendants in this case to have made strong statements of defence on paper. Their defence remains mere allegations not proved by evidence as required under Sections 107 and 108 of the Evidence Act. In addition, pleadings, answers in cross examination and or submissions do not amount to evidence or defence. It therefore follows that however well choreographed the submissions are and however serious the cross examination was and however fervent and vehement the statement of defence is, are not evidence.
27. Similar reliance was placed in the case of Kimani & Another (Suing as the legal representatives of the Estate of the late Jacob Kimani Kamande (Deceased) vs Macharia [2023] KEHC 1701 (KLR) .
28. The Petitioner further argued that the 4 th Respondent although represented in the course of the proceedings never filed a response to the petition. Thus, the 2 nd , 3 rd and 4 th respondents who by Article 156(4) of the Constitution should be represented by the 4 th respondent, did not defend the Petition.
29. The Petitioner identified five issues of determination as whether the Petition is properly before the court; whether the 1 st Respondent is liable in this petition; whether the petitioner has proved his case to the required standard; is the petitioner entitled to damages and what is the quantum thereof and who should bear the costs of the petition.
30. On the first issue, the Petitioner submitted that although the 1 st Respondent argued that he ought to have exhausted alternative dispute resolution mechanisms before approaching the instant court, the 1 st respondent did not disclose the particular alternative dispute resolution mechanism that he ought to have exhausted. The Petitioner argued that the petition is properly before the court and the violations pleaded fall squarely within the jurisdiction of the court under Articles 22(1), 23 and 165(3)(a),(b),(d)(i),(ii) of the Constitution.
31. The Petitioner submitted that the evidence on record reveals that he was initially unlawfully assaulted and subjected to violence by officers of the 1 st Respondent and his unlawful arrest was orchestrated by officers of the 1 st Respondent and carried out by a combined squad of officers of the 1 st and 2 nd Respondents. He further narrated how officers of the 1 st and 2 nd Respondents unleashed brutal violence on him while he was unarmed. The Petitioner further argued that his evidence in the criminal trial was corroborated by his driver DW2 and PW2 PC Charles Osiri who stated that he realized that one person was injured as he was engaged in a brawl with the city council officers. The Petitioner cited Articles 26 and 29 of the Constitution and submitted that the 1 st Respondent’s officers are liable for the unlawful violence, assault and unlawful arrest and deprivation of personal liberty.
32. The Petitioner asserted that the assault, shooting, wounding and injuring in his abdomen by the officers of the 1 st and 2 nd Respondents are a threat to his fundamental right to life which includes the right to a livelihood, a violation of his fundamental right to the security of the person including the freedom from any form of violence and freedom from cruel, unhuman and degrading treatment contrary to Articles 26(1),(3) and 29(c) and (f) of the Constitution. As a consequence of the violence and injuries inflicted on him, he was taken for medical attention by the same officers and ultimately admitted at KNH. The Petitioner asserted that he produced his medical records including a medical report from KNH which shows that he had a gunshot wound on the lower abdomen and that surgery was conducted on him and from the wound a plastic shell and 6 rubber bullets were retrieved . Furthermore, it was conceded by the officers of the 1 st and 2 nd Respondents that he was shot by police officer PW2 PC Charles Osiri . PW3 Willard Chibui on cross examination explicitly stated that he was shot by PC Charles Osiri and PW5, Cpl Elias Kiptum, the investigating officer on cross examination testified that PC Charles Osiri shot the Petitioner as he was the only one who had a rubber bullet gun.
33. The Petitioner argued that no legal justification was given during the criminal trial and in the instant court as to why he was shot. Instead before the subordinate court, officers of the 1 st and 2 nd respondents concocted the allegations that he was shot as he assaulted PW1 while resisting arrest. The learned magistrate saw through the falsehoods and rejected the same in the judgment.
34. The petitioner referred to the case of Charles Munyeki Kimiti vs Joel Mwenda & 3 Others [2010] eKLR where the Court of Appeal held as follows on the legal limits of the use of force by law enforcement agents:-
We are aware, however that Section 21 of the Criminal Procedure Code all was the police or a private person who endeavours to arrest a person suspected of having committed a crime to use all means necessary to effect arrest where arrest is forcibly resisted. However, Section 22(3) of the CPC forbids the use of unreasonable force in effecting arrest in the following terms: “Nothing in this section shall justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.” Whether or not police have used excessive force in effecting arrest is a matter of degree dependent on the peculiar circumstances of each case….The law only allows the police to use all means necessary to effect arrest and even then, they are not allowed to use greater force than reasonable or necessary in the particular circumstances.
35. The petitioner revealed that the case of Charles Munyeki Kimiti vs Joel Mwenda & 3 Others (supra) was decided on 5 th March 2010 before the promulgation of the 2010 Constitution and the enactment of the National Police Service Act 2011. By virtue of Article 29(c) of the Constitution , the NPSA aligned itself to the nonviolent ideal under the article. Section 61 of the Act explicitly provides that the police service shall be nonviolent in execution of its duties and may use force or firearms only as a regulated last resort. It provides: -
(1) Subject to subsection (2), a police officer shall perform the functions and exercise the powers conferred by the Constitution and this Act by use of non-violent means.
(2) Despite subsection (1), a police officer may use force and firearms in accordance with the rules on the use of force and firearms contained in the Sixth Schedule.
36. The conditions as to the use of force in the Sixth Schedule provide thus:
(1) A police officer shall always attempt to use non violent means first and force may only be employed when non violent means are ineffective o without any promise of achieving the intended result.
(2) The force used shall be proportional to the objective to be achieved, the seriousness of the offence, and the resistance of the person against whom it is used, and only to the extent necessary while adhering to the provisions of the law and the Standing Orders.
(3) When the use of force results in injuries-
(a) the police officers present shall provide medical assistance immediately and unless there are good reasons, failing to do so shall be a criminal offence; and
(b) shall notify relatives or close friends of the injured or affected persons.
(4) A police officer who uses any form of force shall immediately report to the officer’s superior explaining the circumstances that necessitated the use of force and the supervisor shall judge the rightfulness and decide the next step, subject to these regulations.
(5) Any use of force that leads to death, serious injury and other grave consequences shall be reported immediately by the officer in charge or another director superior of the person who caused the death or injury, to the Independent Police Oversight authority who shall investigate the case.
37. Further, the conditions as to the use of firearms in part B of the Sixth Schedule of the NPSA are stringent on when firearms may be used by police officers as follows:-
(1) Firearms may only be used when less extreme means are inadequate and for the following purposes-
(a) saving or protecting the life of the officer or other person; and
(b) in self defence or in defence of other person against imminent threat of life or serious injury.
(2) An officer intending to use firearms shall identify themselves and give clear warning of their intention to use firearms, with sufficient time for the warning to be observed except-
(a) where doing so would place the officer or the other person at risk of death or serious harm; or
(b) it would be clearly inappropriate or pointless in the circumstances.
(3) Any use of firearm, even if there is no injury, shall immediately be reported to the officer’s superior.
(4) Any use of firearms that leads to death, serious injury and other grave consequences shall be reported by the officer in charge or another direct supervisor of the person who caused the death or injury, to the Independent Police Oversight Authority who shall investigate the case.
38. The Petitioner submitted that he narrated how the officers of the 1 st and 2 nd respondents intentionally unleashed brutal violence on him while he was unarmed. The violence was premeditated as the first batch of officers of the 1 st respondent first went away only to return reinforced by officers of the 2 nd respondent who shot him. Further the concocted stories by PW1 Peter Kamau Mwangi and PW4 Robert Asing’a at the criminal trial that PW1 had been attacked by him who he had arrested for hawking were dismissed by the trial magistrate as utterly false. Additionally, the record of the criminal trial is also explicit that no report was made to the immediate superiors on the use of firearms as required by the Sixth schedule of the NPSA. Thus, the Petitioner submitted that his right to life under Article 26(1) and (3) of the Constitution was threatened by the violence and the shooting inflicted on him and his fundamental right to freedom from violence under Article 29(c) was wantonly and recklessly violated without any justification. Further, his right to life was further violated by the consequence of his loss of ability to work and earn a livelihood as he nursed injuries inflicted on him.
39. The petitioner asserted that he presented unchallenged evidence before the learned magistrate in the criminal case and the instant court that while he was admitted in the ward at KNH, on 11 th October 2013, police officers paid him a visit, handcuffed him and placed him under their guard during the day ostensibly to stop officers of the 1 st respondent from taking him away. The said evidence of him being handcuffed in the ward as corroborated by DW2 on cross examination. The Petitioner cited Articles 28 and 29 of the Constitution and argued that handcuffing of a suspect must be justified under the law. Furthermore Article 51 of the Constitution preserves all fundamental rights and freedoms of detained persons, those held in custody or imprisoned except those rights and freedoms that are inconsistent with the fact of lawful detention. Part D of the Sixth Schedule of the NPSA on preventing escape prescribe circumstances that justify mechanical restraint by handcuffs.
(1) A police officer may use instruments of restraint to prevent the escape of a detainee or prisoner-
(a) to prevent escape of a detainee; and
(b) to prevent the detainee from self
injury or injuring others or damaging property
(2) An instrument of restraint may-
(a) not be applied for longer than necessary to secure the purpose for which it is used;
(b) not as a punishment; and
(c) Shall be removed immediately after the purpose for which it is used is achieved.
40. Section 24 of the Criminal Procedure Code prohibits the use of unnecessary restraint on an arrested person.
41. The petitioner argued that the 2 nd respondent has not given reasons for handcuffing him in the hospital ward for 3 days. Further, there cannot be any legally acceptable reason for handcuffing him in a hospital bed as a post surgery patient. Reliance was placed in the case of Citizens for Democracy vs State of Assam & Others, Writ Petition (C) No. 22 of 1995 , where perceived high risk prisoners were handcuffed in a hospital ward, the Supreme Court of India reiterated its earlier decisions that the handcuffing of the prisoners violated their fundamental rights and freedoms to equality before the law, freedom and right to life, thus:
This Court in Shukla’s case categorically held that handcuffing is prima facie inhuman, unreasonable, arbitrary and as such repugnant to article 21 of the Constitution of India….This Court in Shukla’s case speaking through Krishna Iyer J. laid down the law as under: Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer..Since there are other ways of ensuring security, it can be laid down as rule that handcuffs or other fetters shall not be forced on the person of an undertrial prisoner ordinarily….We lay down as necessarily implicit in Arts 14 and 19 that when there is no compulsive need to fetter a person’s limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Art 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 (see Sunil Batra, supra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe keeping…But even h
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