Introduction
1. The Petition dated 8 th August 2023 is supported by the Petitioner’s affidavit in support of even date.
2. The Petition challenges his arrest and detention by the 1 st respondent on the basis that it was unlawful. Further, that the consequential criminal proceedings are predicated on evidence obtained in violation of his constitutional rights.
3. The Petitioner seeks the following reliefs:
a) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Article 28 of the Constitution of Kenya was violated by the agents of the 1 st respondent.
b) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 29(c), (d), (e) and (f) of the Constitution of Kenya were violated by the agents of the 1 st respondent.
c) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 31 of the Constitution of Kenya were violated by the agents of the 1 st respondent.
d) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 49(1)(a)(i) and (ii), (b), (c), (d) and (f) and Article 50(4) of the Constitution of Kenya were violated by the agents of the 1 st respondent.
e) A declaration that the statements recorded by the petitioner, all documents seized from the petitioner and all information, confessions or admissions obtained from the petitioner was obtained in a manner contrary to Article 50(4) of the Constitution.
f) A declaration that the trial in Criminal Case No. MCCR E361/2023 Republic vs Peter Njoroge Mwangi & 8 Others was commenced upon the arrest, unlawful detention and torture of the petitioner and therefore all information obtained for use in the trial was obtained by means of torture, cruel, inhuman and degrading treatment of the petitioner and its use in the court proceedings is therefore prohibited under the provisions of Article 50(4) of the Constitution of Kenya and criminalized under Section 9 of the Prevention of Torture Act.
g) An order for compensation as follows
i. Special damages
ii. General damages
iii. Aggravated damages
h) An order of certiorari to bring to this court and quash the decision to charge made by the 2 nd respondent on the basis that the decision was based on information or evidence obtained in a manner that is contrary to the provisions of Article 50(4) of the Constitution and is contrary to Section 9 of the Prevention of Torture Act.
i) An order of prohibition stopping the court from proceeding with the trial to the extent that it is based on information or evidence obtained in a manner that is contrary to the provisions of Article 50(4) of the Constitution and is contrary to Section 9 of the Prevention of Torture Act.
j) Costs of the petition.
k) Any other relief that this Honourable Court considers appropriate and just to grant.
4. In opposition to the Petition, the 1 st & 3 rd respondents filed a undated Replying affidavit.
5. The 2 nd respondent filed grounds of opposition dated 14 th May 2024.
The Petitioner’s Case
6. The Petitioner is a Director of a company known as Vinepack Limited which manufactures alcoholic drinks.
7. The Petitioner avers that sometime in February 2023 , he learnt through the Association of Alcoholic Beverage Manufacturers of Kenya (ABAK) in which Vinepack Limited is a member, that there were two 20 x 20 feet shipping containers of sugar which had been imported into the country but had been declared unfit for human consumption.
8. According to the Petitioner, members of the ABAK Association had been invited to express interest in destroying the sugar through the process of distillation to produce ethanol. The petitioner avers that he went to Mombasa to see the cargo and followed up with Kenya Revenue Authority (KRA) to secure the deal.
9. The Petitioner pleads that he learnt that the sugar was imported into Kenya from Zimbabwe by two Kenyan companies identified as Meracko Limited and Sirrocco Limited sometime in July 2018 but the sugar was not cleared at the Mombasa port because it was found to have failed the Kenyan standard of importation by the Kenya Bureau of Standards (Kebs). The product did not contain expiry dates displayed on the packaging hence it was declared unfit for human consumption and upon condemnation, the consignment was deposited by the KRA with the Mediterranean Shipping Company (MSC) through their local agent Ocean Freight Limited pending reshipment or destruction. Further, the importers were instructed to re-ship the sugar back to the country of origin within 30 days from the date of condemnation or have the consignment destroyed at the importers expense.
10. The Petitioner contends that the importers were unable to reship the sugar within the set timelines and their only option was to have the sugar destroyed at their expense. The sugar was subsequently advertised in the Kenya Gazette on 2nd July 2021.
11. The Petitioner avers that on 16 th February 2023, Vinepack’s Limited expression of interest to destroy the sugar by distillation was approved and was granted authority to take possession of the sugar together with a company called Asset & Cargo Limited who had been appointed by the ocean Freight Limited for the purpose of handling the logistics and delivery to the destruction site.
12. The Petitioner contends that destruction multi-agency committee (MAT) comprising of government agencies was put in place to supervise the release and wholesome delivery of the sugar to Vinepack’s premises in Thika. The sugar was removed from the port on 19 th April 2023 and conveyed by road on 40 trucks fitted with Regional Electronic Cargo Tracking System (RECTS) to ensure delivery to the destination and the cargo was delivered at Vinepack Limited’s factory located at Thika where the tracking devices were removed from the trucks then moved with the approval of the MAT to a warehouse located about 500m away at Kings Commodities Warehouses, Thika where there was sufficient storage space. The sugar was offloaded for two days and a team of six KRA officials joined the MAT at the Kings Commodities warehouse and after offloading the consignment placed custom seals on the doors of the warehouse effectively taking possession and control of the sugar.
13. The Petitioner contends that KRA officers informed him that the purpose of placing custom seals yet the consignment had been released to them was because there was need for further consultations by KRA on the consignment when to reopen the warehouse. One Crispus Waithaka of Asset & Cargo placed padlocks on the door because he had a role after delivery of the consignment and surrender of the shipping containers to the shipping line to ensure that destruction of the consignment took place and deliver a destruction report for processing a destruction certificate. The petitioner averred that he was comfortable in the knowledge that the premises and the sugar was in custody of the KRA under custom seal.
14. On 3 rd May 2023 , at about 9.30am, the Petitioner was summoned to a warehouse located at Kings Commodities in Makongeni, Thika in connection with an investigation involving a consignment of condemned sugar designated for destruction by distillation but which was discovered had disappeared.
15. The Petitioner was arrested by police officers at the warehouse and his documents, mobile phone and motor vehicle were immediately confiscated. He was handcuffed and detained.
16. The petitioners avers that he was continuously detained by the police officers for five (5) days without being presented before any court of law. During the said period, the Petitioner alleges that he was interrogated and tortured in a bid to obtain confession to incriminate him and others in the investigation relating to the condemned sugar. The petitioners reveals that the torture, interrogation and confiscation of his personal belongings and documents was done with the intention of collecting incriminating information to support the charges against him in MCCR E361/2023 .
17. The petitioner argues that he was detained beyond the period stipulated under the Constitution and his rights were violated equally violated while in the unlawful detention. Further, he was handcuffed placed in the boot of a police motor vehicle in an undignified and inhumane condition. He was booked at Kileleshwa Police Station after a 56=hour ordeal since his arrest where his detention continued for five (5) days from the time of his arrest.
18. The petitioner avers that he was granted police bond on Monday 8 th May 2023 when he expected to be taken to court but was instead directed to report at the Nairobi Area police station every morning. The Petitioner contends that he would be kept waiting at the Nairobi Area Police station from morning until evening every day while on police bond until on Friday 12 th May 2023 when his bond was cancelled and he was again detained at the Kileleshwa police station for arraignment on Monday 15 th May 2023. According to the Petitioner, no reason was given for the selective cancellation of the bond on 12 th May 2023. He was then charged together with others on 15 th May 2023 in MCCR Case No. E361/2023.
19. The Petitioner avers that he suffered and continues to suffer substantial loss at the hands of the police officers and his health has deteriorated. He states that he developed a nerve injury and has been in and out of hospital since his incarceration due to health conditions arising from the period of his detention and torture by the police.
The 1 st & 3 rd Respondent’s Case
20. The Replying affidavit was sworn by SGT Rinos Musungu No. 58803 , the lead investigator in the case. On behalf of the 1 st and 3 rd Respondent, he depones that on 3 rd May 2023, a team of DCI officers was tasked to carry out investigations into the loss of condemned brown sugar which was in the custody of Vinepark Limited , a company associated with the Petitioner.
21. The deponent swears that during their investigations, they established that on 3 rd July 2018 , two companies, Merako Investments (K) Limited and Sirocco Investments (K) Limited imported brown sugar from Zimbabwe totalling to about 20,064 bags (weighing 50 kilogrammes each) and packed in 40x20 feet containers vide bill of lading MSUB1175403 and MSCUB175411 respectively. It was further established that the goods had originated from Mozambique (a non-COMESA member country) but the description given to the consignor was Zimbabwe Sugar Sales-PVT so as to pass off as brown sugar imported from Zimbabwe.
22. The deponent swears that on 16 th July 2018 , the goods imported by Sirocco Investments (K) Limited and Merako Investments (K) Limited were condemned by the Kenya Bureau of Standards (KBS) for being unfit for human consumption after failing to meet the Kenya quality standards as they lacked the date of manufacturing or expiry. On 9 th June 2020, the deponent deposes that KBS through a letter REF: KEBS/KLD/AG/VOL.33(38) informed the Chief Manager Port Operations at KRA that they had inspected the consignment in question and recommended for its destruction. Similarly on 19 th June 2020, the National Environment and Management Authority (NEMA) recommended that the consignment be destroyed by denaturing and incineration at Bamburi Cement Factory .
23. The 1 st Respondent deponed that on 15 th January 2020, Oceanfreight (EA) Limited wrote to the Chief manager at KRA Ports Operations vide letter REF: OFEA/UAC/MISC informing them that the importer had appointed Galgamesh Enterprises Limited to handle the destruction process on its behalf since their request to reship the consignment back to the country of origin had been rejected. The 1 st Respondent stated further that on 2 nd July 2021, the Commissioner of Customs and Border Control gazetted the destruction of the condemned sugar vide legal notice number 6542. On 9 th December 2022 , KBS Managing Director Lt Col. (Rtd) Nernard Njiraini wrote to the Commissioner General KRA vide letter REF: KEBS/CONF/DIR/1/2/VOL3 confirming that the Bureau had no objection to conversion of condemned sugar ethanol through distillation as requested by Galgamesh Enterprises Ltd .
24. The Petitioner through Vinepack limited wrote a letter dated 6 th February 2023 and expressed interest to purchase the condemned sugar for purposes of industrial distillation after having inspected the consignment and the request was accepted by the KRA Commissioner of Customs and Border Control. on 5 th April 2023 , it was resolved by the Destruction Multi-agency Committee that the consignment had overstayed at the customs yard and there was need to collect warehouse rent or release the sugar that was held at Mitchell Cotts Shimanzi CFS for purposes of industrial distillation.
25. The deponent reveals that the consignment was released to Vinepack Limited on 12 th April 2024 after verification by KRA Customs officials and Regional Electronic Cargo Tracking System (RECTS) gadgets and seals were installed. The consignment reached the premises of Vinepack Limited on 20 th April 2023 but the Petitioner requested to move the consignment to a rented go-down at Kings Commodities Ltd alleging that the storage facilities were inadequate, which information he knew before transporting the consignment from Mombasa. The go down was sealed with customs seals serial numbers 0295454 and 0295457 by KRA investigations and enforcement officers.
26. On 3 rd May 2023 , a team from DCI Operations Support Unit and KRA investigations department visited the go down at Kings Commodities Limited upon receiving intelligence information that the sugar had been diverted to the local market for domestic use. It was further established that the fourth interested party one Derrick Kago had changed and put new customs seals numbers 0295463 and 02955460. Upon opening the go down, the whole consignment of sugar that had been kept there was missing and the Petitioner was unable to explain how the condemned sugar left the premises. The petitioner agreed to assist the investigations in the recovery of the missing consignment which included travelling to Mombasa to stop any further distribution of the sugar.
27. The deponent reveals that during the operation to recover the lost consignment, the investigation team managed to recover 12 bags of condemned brown sugar branded Hullet from Zimbabwe in a store owned by Abdi Hirsi Yusuf alias Blacky , the 6 th interested party herein. The investigations further revealed that the petitioner and the interested parties were involved in an intricate conspiracy to divert the condemned sugar from destruction as required by law into the market for domestic use despite the fact that the sugar was unfit for human consumption.
28. The deponent states that the petitioner and the eight interested parties were arraigned before Milimani Law Courts for the offence of conspiracy to commit a felony contrary to Section 393 of the Penal Code , abuse of office , stealing and two other custom related offences. Further, the decision to charge and prosecute the petitioner and the interested parties was based on evidence placed before the 3 rd respondent by the investigative bodies after the petitioner had been given an opportunity to be heard through his statement which was recorded accordingly.
29. The deponent argues that the Police Service Act under Section 24 stipulates the functions of the police and under Section 35 outlines the functions of the DCI which include a duty to investigate any complaint once a complaint is made, apprehension of offenders and enforcement of all laws and regulations with which it is charged. The deponent reveals that the petitioner was arrested on 3 rd May 2023 within Thika town and he willingly led the officers to arrest two more suspects within Nairobi Business District on the same date. The Petitioner further led them to Mombasa on the same date where he willingly led them in identification and arrest of three more suspects on 4 th May 2023 before the officers and all the suspects travelled back to Nairobi on the night of 4 th and 5 th May 2023 where they arrived in the morning of 5 th May 2023 before the Petitioner recorded his statement. At the time of recording his statement, the Petitioner never raised any complaint in relation with being tortured, he only appeared fatigued due to the long travel.
30. The deponent states that the Petitioner was booked at Kileleshwa Police Station on 5 th May 2023 under OB No. 21/05/05/23. He was later bailed out on cash bail of Kshs. 100,000/- on 8 th May 2023 from Kilimani Police Station and he continued to report to the investigative agencies daily from 9 th May 2023 up to 22 nd May 2023 when he and the eight others were arraigned before the Milimani Law Courts. The deponent argues that the Petitioner’s allegation that he was tortured is not supported and is an afterthought calculated to defeat justice in Milimani Law Courts Criminal Case No. 361/2023.
The 2 nd Respondent’s Case
31. The 2 nd respondent argues that it has a constitutional mandate under Article 156(4) of the Constitution as well as Section 5 of the Office of the Attorney General Act which functions do not include exercising of supervisory powers over the 1 st and 3 rd respondents and there is no allegations against it hence has no business being dragged in the instant petition. The 2 nd respondent further argues that the petition has not pleaded with precision as it fails to provide adequate particulars of the claim relating to any alleged violation of the Constitution.
32. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
33. The petitioner submitted that it is not in contention that he was arrested on 3 rd May 2023 and has been in the custody of the police officers from 3 rd May to 8 th May 2023 yet he was not presented before a court of law and 3 rd May 2023 fell on a Wednesday. Further the Petitioner argued that from the replying affidavit, it is discerned that he was not booked at any police station from the time of his arrest on 3 rd May 2023 until 5 th May 2023when he arrived at Kilimani Police Station. The petitioner submitted that during that time he was handcuffed in the boot of a police motor vehicle with no access to food or a health facility. The said position has been corroborated by the written statement of Faith Kiara, Chief Inspector Michael Kirwa Melly, Godhard Mburu Ngugi and PC Ronald Chemosit. The petitioner argued that he had proved that his constitutional rights under Article 49 were violated and he relied on the case of Salim Kofia Chivui vs Resident Magistrate Butali Law Courts & Another [2012] eKLR where the court found that the provisions of Article 49 provide the ‘outer limits’ for presenting an arrested person before a court of law upon expiry of 24 hours or at the next available opportunity if the 24 hours ends outside ordinary court hours.
34. The petitioner asserted that upon his arrest on 3 rd May 2023 he was handcuffed and physically assaulted by police officers named in his supporting affidavit dated 8 th August 2023. The said officers have recorded statements as prosecution witnesses before the trial court but have not responded to the allegations of torture and physical abuse. The petitioner further submitted that he had no access to his phone and his right to access any person that could help in the situation was taken away. In support of his contentions, the petition stated that he annexed treatment notes and a medical examination report pointing to the aftermath of the ordeal. The petitioner argued that two nights spent handcuffed in the boot of the police vehicle was degrading, inhuman and contrary to Articles 28 and 29 of the Constitution.
35. The petitioner cited Article 50(4) of the Constitution and submitted that the respondents’ agents violated his rights under articles 28, 29 and 49 of the Constitution in pursuit of information and evidence intended for consumption in MCCR 361/2023. Reliance was placed on the case of Mue & Another vs Chairperson of Independent Electoral and Boundaries Commission & 3 Others (Presidential Election Petition 4 of 2017) [2017] KESC 45 (KLR) as follows:-
The petitioners, using the above test, do not show how they were able to obtain the internal memos showing communication between employees of the 2 nd respondent. Further, it has been alleged that these memos have only been shown in part, and taken out of the context to advance the petitioners’ case against the 1 st and 2 nd respondent, and to an extent, the 3 rd respondent. No serious answer has been given to that contention. The use of such information before the Court, accessed without following the requisite procedures, not only renders it inadmissible but also impacts on the probative value of such information. This is the point of divergence between the instant matter and the case of Nicholas Randa Ombija vs Judges and Magistrates Vetting Board (supra). In the present instances, there has been a clear violation of laid out procedure of law attributable to access of information and violation of the rights of privacy and protection of property that the 2 nd respondent is guaranteed under the Constitution….
36. Further reliance was placed in the decision in Mohammed Feisal & 19 Others vs Henry Kandie, Chief Inspector of Police, OCS Ongata Rongai Police station & 7 Others; National Police Service Commission & Another (Interested Party) [2018] eKLR in determining whether the use of such evidence would render the trial unfair or otherwise detrimental to the administration of justice. The Honourable Court stated:-
To arrest, detain or investigate must be accrued out within constitutionally permissible parameters. Therefore, any system of law which keeps in mind the constitutional provisions must ask the fundamental question whether in order to fight crime its necessary to derogate from the bill of rights entitlements by denying a suspect of misdemeanours right to liberty, freedom, dignity, equality, freedom from torture, degrading and inhuman treatment. The act of apprehending a person without notice even if its for a short period has far reaching effect on his or her rights to human dignity. I have in view the harm done to the individual and his or her family before the investigations are carried out and a decision is made of charging him or her before a court of law. First, being on suspicion the right to liberty and security of person under Article 29 of the Constitution should not be interfered with arbitrarily to confine the individual to a police station or detention facility. Furthermore, the maxim innocent until proven guilty is one of our key pillars in the administration of justice.
37. The petitioner argued that the investigation of any alleged crime however serious must be done in utmost adherence to the Constitution. Further, Article 244 specifically obligates the 1 st respondent to comply with the constitutional standards of human rights and fundamental freedoms. Additionally, to allow evidence deliberately obtained by violation of human rights creates a market for it and condones impunity in the administration of justice and will always be detrimental to the administration of justice. In support reliance was placed in the case of Philomena Mbete Mwilu vs Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested Party) International Commission of Jurist Kenya Chapter (Amicus Curiae) (2019) eKLR where the court stated:
Evidence must be excluded only if it (a) renders the trial unfair; or (b) is otherwise detrimental to the administration of justice. This entails that admitting impugned evidence could damage the administration of justice in ways that would leave the fairness of the trial intact; but where admitting the evidence renders the trial itself unfair, the administration of justice is always damaged. Differently put, evidence must be excluded in all cases where its admission is detrimental to the administration of justice, including the subset of cases where it renders the trial unfair. The provision plainly envisages cases where evidence should be excluded from broad public policy reasons beyond fairness to the individual accused.
The 1 st & 3 rd Respondents Submissions.
38. The respondents cited the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others [2014] eKLR which stated:
Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs Republic (1979) KLR 154 : the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
39. The respondents argued that the arrest and charging of the petitioner in the criminal case cannot be said to be in contravention of Article 28 of the Constitution. Furthermore, the freedom of the petitioner may be curtailed by the sustenance of the criminal case but the same is within the law and cannot be said to be in violation of Article 29 of the Constitution.
40. Regarding the right to be presented in court within 24 hours of arrest, the respondents relied on the case of Kariuki vs Director of Public Prosecutions & 3 Others; Wangila & 2 Others (Interested Parties) (Petition E240 of 2022) [2024] KEHC 834 (KLR) where the court stated:-
When considering the question of violation or otherwise of the petitioner’s rights and fundamental freedoms under the Bill of Rights, arising from the allegation of failure to present him in court within the constitutional timelines, this Court must exercise caution in making any pronouncements at this stage. This issue is best raised in the trial court which will then make a determination on the same and the effect thereof on the proceedings before it. Any finding by this Court on the issue at this stage will be prejudicial to the pending proceedings in the criminal case and eventual outcome.
41. The respondents argued that the issue of the manner in which the evidence that the prosecution intends to rely on was obtained is immaterial as the petitioner will be accorded an opportunity before the trial court to adduce and challenge the evidence. Further the statements recorded by the petitioner under caution have not in any way been relied on as a confession or evidence in the criminal trial. The respondent further submitted that the 1 st respondent undertook extensive investigations into the matter and recorded statements from various witnesses as is required by law before submitting the file to the 3 rd respondent for directions and advice. The respondents argued that the criminal justice system is a process anchored in the constitution and the law and arresting and charging of persons on account of criminal culpability is part of the system. In support reliance was placed in the decision of Republic vs Service & 2 Others; Resilient Investments Limited & 3 Others (Interested Party); Limited ( ex parte ) (Judicial Review Application E037 of 2021) [2022] KEHC 43 (KLR) where Mativo J (as he then was) stated:-
The legislative intent in that the investigative officer records statements of persons acquainted with the facts of the case promptly to preserve the best evidence and to check any manipulation on the part of witnesses. It is presumed that spontaneity ensures the truth of details of incident and participants therein and delay generally occasions manipulations and colouring. Therefore, the investigating officers are required to record statements of persons acquainted with the facts promptly and failure to do so is a serious matter.
42. The respondents asserted that the decision to charge the Petitioner was made by the 3 rd respondent upon consideration of the available evidence and the petitioner has not shown how the 1 st respondent breached Article 157(11) of the Constitution in instituting the impugned criminal proceedings. Further reliance was placed on the case of Republic vs Director of Public Prosecution & 2 Others ex parte Francis Njakwe Maina & Another [2015] eKLR where it was observed that the court ought not to usurp the constitutional mandate of the Director of Prosecutions to undertake the prosecution in exercise of the discretion conferred upon the said office. The respondents further argued that the DPP derives its prosecutorial power from the Constitution and the ODPP Act. The respondents cited the case of Martin Muswanya Nyakiamo vs Director of Public Prosecution & 2 Others; Charles Ogega Ongwae & 5 Others (Interested Parties) [2022] eKLR where the court held:-
Whereas the petitioners have a right not to be subjected to an illegal and/or unwarranted criminal process, the DPP is also under a public duty to ensure that offences are prosecuted and those culpable attended to as the law requires. That is the balance created by the law and which this Court is called upon to serious undertake. In fact, that is the essence of the rule of law.
43. The respondents cited Article 157(11) of the Constitution and submitted that the petitioner did not demonstrate that the decision to prosecute him was against public interest; does not further interests of the administration of justice or that it is an abuse of the legal
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1. The Petition dated 8 th August 2023 is supported by the Petitioner’s affidavit in support of even date.
2. The Petition challenges his arrest and detention by the 1 st respondent on the basis that it was unlawful. Further, that the consequential criminal proceedings are predicated on evidence obtained in violation of his constitutional rights.
3. The Petitioner seeks the following reliefs:
a) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Article 28 of the Constitution of Kenya was violated by the agents of the 1 st respondent.
b) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 29(c), (d), (e) and (f) of the Constitution of Kenya were violated by the agents of the 1 st respondent.
c) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 31 of the Constitution of Kenya were violated by the agents of the 1 st respondent.
d) A declaration that the petitioner’s human rights and fundamental freedoms guaranteed under Articles 49(1)(a)(i) and (ii), (b), (c), (d) and (f) and Article 50(4) of the Constitution of Kenya were violated by the agents of the 1 st respondent.
e) A declaration that the statements recorded by the petitioner, all documents seized from the petitioner and all information, confessions or admissions obtained from the petitioner was obtained in a manner contrary to Article 50(4) of the Constitution.
f) A declaration that the trial in Criminal Case No. MCCR E361/2023 Republic vs Peter Njoroge Mwangi & 8 Others was commenced upon the arrest, unlawful detention and torture of the petitioner and therefore all information obtained for use in the trial was obtained by means of torture, cruel, inhuman and degrading treatment of the petitioner and its use in the court proceedings is therefore prohibited under the provisions of Article 50(4) of the Constitution of Kenya and criminalized under Section 9 of the Prevention of Torture Act.
g) An order for compensation as follows
i. Special damages
ii. General damages
iii. Aggravated damages
h) An order of certiorari to bring to this court and quash the decision to charge made by the 2 nd respondent on the basis that the decision was based on information or evidence obtained in a manner that is contrary to the provisions of Article 50(4) of the Constitution and is contrary to Section 9 of the Prevention of Torture Act.
i) An order of prohibition stopping the court from proceeding with the trial to the extent that it is based on information or evidence obtained in a manner that is contrary to the provisions of Article 50(4) of the Constitution and is contrary to Section 9 of the Prevention of Torture Act.
j) Costs of the petition.
k) Any other relief that this Honourable Court considers appropriate and just to grant.
4. In opposition to the Petition, the 1 st & 3 rd respondents filed a undated Replying affidavit.
5. The 2 nd respondent filed grounds of opposition dated 14 th May 2024.
The Petitioner’s Case
6. The Petitioner is a Director of a company known as Vinepack Limited which manufactures alcoholic drinks.
7. The Petitioner avers that sometime in February 2023 , he learnt through the Association of Alcoholic Beverage Manufacturers of Kenya (ABAK) in which Vinepack Limited is a member, that there were two 20 x 20 feet shipping containers of sugar which had been imported into the country but had been declared unfit for human consumption.
8. According to the Petitioner, members of the ABAK Association had been invited to express interest in destroying the sugar through the process of distillation to produce ethanol. The petitioner avers that he went to Mombasa to see the cargo and followed up with Kenya Revenue Authority (KRA) to secure the deal.
9. The Petitioner pleads that he learnt that the sugar was imported into Kenya from Zimbabwe by two Kenyan companies identified as Meracko Limited and Sirrocco Limited sometime in July 2018 but the sugar was not cleared at the Mombasa port because it was found to have failed the Kenyan standard of importation by the Kenya Bureau of Standards (Kebs). The product did not contain expiry dates displayed on the packaging hence it was declared unfit for human consumption and upon condemnation, the consignment was deposited by the KRA with the Mediterranean Shipping Company (MSC) through their local agent Ocean Freight Limited pending reshipment or destruction. Further, the importers were instructed to re-ship the sugar back to the country of origin within 30 days from the date of condemnation or have the consignment destroyed at the importers expense.
10. The Petitioner contends that the importers were unable to reship the sugar within the set timelines and their only option was to have the sugar destroyed at their expense. The sugar was subsequently advertised in the Kenya Gazette on 2nd July 2021.
11. The Petitioner avers that on 16 th February 2023, Vinepack’s Limited expression of interest to destroy the sugar by distillation was approved and was granted authority to take possession of the sugar together with a company called Asset & Cargo Limited who had been appointed by the ocean Freight Limited for the purpose of handling the logistics and delivery to the destruction site.
12. The Petitioner contends that destruction multi-agency committee (MAT) comprising of government agencies was put in place to supervise the release and wholesome delivery of the sugar to Vinepack’s premises in Thika. The sugar was removed from the port on 19 th April 2023 and conveyed by road on 40 trucks fitted with Regional Electronic Cargo Tracking System (RECTS) to ensure delivery to the destination and the cargo was delivered at Vinepack Limited’s factory located at Thika where the tracking devices were removed from the trucks then moved with the approval of the MAT to a warehouse located about 500m away at Kings Commodities Warehouses, Thika where there was sufficient storage space. The sugar was offloaded for two days and a team of six KRA officials joined the MAT at the Kings Commodities warehouse and after offloading the consignment placed custom seals on the doors of the warehouse effectively taking possession and control of the sugar.
13. The Petitioner contends that KRA officers informed him that the purpose of placing custom seals yet the consignment had been released to them was because there was need for further consultations by KRA on the consignment when to reopen the warehouse. One Crispus Waithaka of Asset & Cargo placed padlocks on the door because he had a role after delivery of the consignment and surrender of the shipping containers to the shipping line to ensure that destruction of the consignment took place and deliver a destruction report for processing a destruction certificate. The petitioner averred that he was comfortable in the knowledge that the premises and the sugar was in custody of the KRA under custom seal.
14. On 3 rd May 2023 , at about 9.30am, the Petitioner was summoned to a warehouse located at Kings Commodities in Makongeni, Thika in connection with an investigation involving a consignment of condemned sugar designated for destruction by distillation but which was discovered had disappeared.
15. The Petitioner was arrested by police officers at the warehouse and his documents, mobile phone and motor vehicle were immediately confiscated. He was handcuffed and detained.
16. The petitioners avers that he was continuously detained by the police officers for five (5) days without being presented before any court of law. During the said period, the Petitioner alleges that he was interrogated and tortured in a bid to obtain confession to incriminate him and others in the investigation relating to the condemned sugar. The petitioners reveals that the torture, interrogation and confiscation of his personal belongings and documents was done with the intention of collecting incriminating information to support the charges against him in MCCR E361/2023 .
17. The petitioner argues that he was detained beyond the period stipulated under the Constitution and his rights were violated equally violated while in the unlawful detention. Further, he was handcuffed placed in the boot of a police motor vehicle in an undignified and inhumane condition. He was booked at Kileleshwa Police Station after a 56=hour ordeal since his arrest where his detention continued for five (5) days from the time of his arrest.
18. The petitioner avers that he was granted police bond on Monday 8 th May 2023 when he expected to be taken to court but was instead directed to report at the Nairobi Area police station every morning. The Petitioner contends that he would be kept waiting at the Nairobi Area Police station from morning until evening every day while on police bond until on Friday 12 th May 2023 when his bond was cancelled and he was again detained at the Kileleshwa police station for arraignment on Monday 15 th May 2023. According to the Petitioner, no reason was given for the selective cancellation of the bond on 12 th May 2023. He was then charged together with others on 15 th May 2023 in MCCR Case No. E361/2023.
19. The Petitioner avers that he suffered and continues to suffer substantial loss at the hands of the police officers and his health has deteriorated. He states that he developed a nerve injury and has been in and out of hospital since his incarceration due to health conditions arising from the period of his detention and torture by the police.
The 1 st & 3 rd Respondent’s Case
20. The Replying affidavit was sworn by SGT Rinos Musungu No. 58803 , the lead investigator in the case. On behalf of the 1 st and 3 rd Respondent, he depones that on 3 rd May 2023, a team of DCI officers was tasked to carry out investigations into the loss of condemned brown sugar which was in the custody of Vinepark Limited , a company associated with the Petitioner.
21. The deponent swears that during their investigations, they established that on 3 rd July 2018 , two companies, Merako Investments (K) Limited and Sirocco Investments (K) Limited imported brown sugar from Zimbabwe totalling to about 20,064 bags (weighing 50 kilogrammes each) and packed in 40x20 feet containers vide bill of lading MSUB1175403 and MSCUB175411 respectively. It was further established that the goods had originated from Mozambique (a non-COMESA member country) but the description given to the consignor was Zimbabwe Sugar Sales-PVT so as to pass off as brown sugar imported from Zimbabwe.
22. The deponent swears that on 16 th July 2018 , the goods imported by Sirocco Investments (K) Limited and Merako Investments (K) Limited were condemned by the Kenya Bureau of Standards (KBS) for being unfit for human consumption after failing to meet the Kenya quality standards as they lacked the date of manufacturing or expiry. On 9 th June 2020, the deponent deposes that KBS through a letter REF: KEBS/KLD/AG/VOL.33(38) informed the Chief Manager Port Operations at KRA that they had inspected the consignment in question and recommended for its destruction. Similarly on 19 th June 2020, the National Environment and Management Authority (NEMA) recommended that the consignment be destroyed by denaturing and incineration at Bamburi Cement Factory .
23. The 1 st Respondent deponed that on 15 th January 2020, Oceanfreight (EA) Limited wrote to the Chief manager at KRA Ports Operations vide letter REF: OFEA/UAC/MISC informing them that the importer had appointed Galgamesh Enterprises Limited to handle the destruction process on its behalf since their request to reship the consignment back to the country of origin had been rejected. The 1 st Respondent stated further that on 2 nd July 2021, the Commissioner of Customs and Border Control gazetted the destruction of the condemned sugar vide legal notice number 6542. On 9 th December 2022 , KBS Managing Director Lt Col. (Rtd) Nernard Njiraini wrote to the Commissioner General KRA vide letter REF: KEBS/CONF/DIR/1/2/VOL3 confirming that the Bureau had no objection to conversion of condemned sugar ethanol through distillation as requested by Galgamesh Enterprises Ltd .
24. The Petitioner through Vinepack limited wrote a letter dated 6 th February 2023 and expressed interest to purchase the condemned sugar for purposes of industrial distillation after having inspected the consignment and the request was accepted by the KRA Commissioner of Customs and Border Control. on 5 th April 2023 , it was resolved by the Destruction Multi-agency Committee that the consignment had overstayed at the customs yard and there was need to collect warehouse rent or release the sugar that was held at Mitchell Cotts Shimanzi CFS for purposes of industrial distillation.
25. The deponent reveals that the consignment was released to Vinepack Limited on 12 th April 2024 after verification by KRA Customs officials and Regional Electronic Cargo Tracking System (RECTS) gadgets and seals were installed. The consignment reached the premises of Vinepack Limited on 20 th April 2023 but the Petitioner requested to move the consignment to a rented go-down at Kings Commodities Ltd alleging that the storage facilities were inadequate, which information he knew before transporting the consignment from Mombasa. The go down was sealed with customs seals serial numbers 0295454 and 0295457 by KRA investigations and enforcement officers.
26. On 3 rd May 2023 , a team from DCI Operations Support Unit and KRA investigations department visited the go down at Kings Commodities Limited upon receiving intelligence information that the sugar had been diverted to the local market for domestic use. It was further established that the fourth interested party one Derrick Kago had changed and put new customs seals numbers 0295463 and 02955460. Upon opening the go down, the whole consignment of sugar that had been kept there was missing and the Petitioner was unable to explain how the condemned sugar left the premises. The petitioner agreed to assist the investigations in the recovery of the missing consignment which included travelling to Mombasa to stop any further distribution of the sugar.
27. The deponent reveals that during the operation to recover the lost consignment, the investigation team managed to recover 12 bags of condemned brown sugar branded Hullet from Zimbabwe in a store owned by Abdi Hirsi Yusuf alias Blacky , the 6 th interested party herein. The investigations further revealed that the petitioner and the interested parties were involved in an intricate conspiracy to divert the condemned sugar from destruction as required by law into the market for domestic use despite the fact that the sugar was unfit for human consumption.
28. The deponent states that the petitioner and the eight interested parties were arraigned before Milimani Law Courts for the offence of conspiracy to commit a felony contrary to Section 393 of the Penal Code , abuse of office , stealing and two other custom related offences. Further, the decision to charge and prosecute the petitioner and the interested parties was based on evidence placed before the 3 rd respondent by the investigative bodies after the petitioner had been given an opportunity to be heard through his statement which was recorded accordingly.
29. The deponent argues that the Police Service Act under Section 24 stipulates the functions of the police and under Section 35 outlines the functions of the DCI which include a duty to investigate any complaint once a complaint is made, apprehension of offenders and enforcement of all laws and regulations with which it is charged. The deponent reveals that the petitioner was arrested on 3 rd May 2023 within Thika town and he willingly led the officers to arrest two more suspects within Nairobi Business District on the same date. The Petitioner further led them to Mombasa on the same date where he willingly led them in identification and arrest of three more suspects on 4 th May 2023 before the officers and all the suspects travelled back to Nairobi on the night of 4 th and 5 th May 2023 where they arrived in the morning of 5 th May 2023 before the Petitioner recorded his statement. At the time of recording his statement, the Petitioner never raised any complaint in relation with being tortured, he only appeared fatigued due to the long travel.
30. The deponent states that the Petitioner was booked at Kileleshwa Police Station on 5 th May 2023 under OB No. 21/05/05/23. He was later bailed out on cash bail of Kshs. 100,000/- on 8 th May 2023 from Kilimani Police Station and he continued to report to the investigative agencies daily from 9 th May 2023 up to 22 nd May 2023 when he and the eight others were arraigned before the Milimani Law Courts. The deponent argues that the Petitioner’s allegation that he was tortured is not supported and is an afterthought calculated to defeat justice in Milimani Law Courts Criminal Case No. 361/2023.
The 2 nd Respondent’s Case
31. The 2 nd respondent argues that it has a constitutional mandate under Article 156(4) of the Constitution as well as Section 5 of the Office of the Attorney General Act which functions do not include exercising of supervisory powers over the 1 st and 3 rd respondents and there is no allegations against it hence has no business being dragged in the instant petition. The 2 nd respondent further argues that the petition has not pleaded with precision as it fails to provide adequate particulars of the claim relating to any alleged violation of the Constitution.
32. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
33. The petitioner submitted that it is not in contention that he was arrested on 3 rd May 2023 and has been in the custody of the police officers from 3 rd May to 8 th May 2023 yet he was not presented before a court of law and 3 rd May 2023 fell on a Wednesday. Further the Petitioner argued that from the replying affidavit, it is discerned that he was not booked at any police station from the time of his arrest on 3 rd May 2023 until 5 th May 2023when he arrived at Kilimani Police Station. The petitioner submitted that during that time he was handcuffed in the boot of a police motor vehicle with no access to food or a health facility. The said position has been corroborated by the written statement of Faith Kiara, Chief Inspector Michael Kirwa Melly, Godhard Mburu Ngugi and PC Ronald Chemosit. The petitioner argued that he had proved that his constitutional rights under Article 49 were violated and he relied on the case of Salim Kofia Chivui vs Resident Magistrate Butali Law Courts & Another [2012] eKLR where the court found that the provisions of Article 49 provide the ‘outer limits’ for presenting an arrested person before a court of law upon expiry of 24 hours or at the next available opportunity if the 24 hours ends outside ordinary court hours.
34. The petitioner asserted that upon his arrest on 3 rd May 2023 he was handcuffed and physically assaulted by police officers named in his supporting affidavit dated 8 th August 2023. The said officers have recorded statements as prosecution witnesses before the trial court but have not responded to the allegations of torture and physical abuse. The petitioner further submitted that he had no access to his phone and his right to access any person that could help in the situation was taken away. In support of his contentions, the petition stated that he annexed treatment notes and a medical examination report pointing to the aftermath of the ordeal. The petitioner argued that two nights spent handcuffed in the boot of the police vehicle was degrading, inhuman and contrary to Articles 28 and 29 of the Constitution.
35. The petitioner cited Article 50(4) of the Constitution and submitted that the respondents’ agents violated his rights under articles 28, 29 and 49 of the Constitution in pursuit of information and evidence intended for consumption in MCCR 361/2023. Reliance was placed on the case of Mue & Another vs Chairperson of Independent Electoral and Boundaries Commission & 3 Others (Presidential Election Petition 4 of 2017) [2017] KESC 45 (KLR) as follows:-
The petitioners, using the above test, do not show how they were able to obtain the internal memos showing communication between employees of the 2 nd respondent. Further, it has been alleged that these memos have only been shown in part, and taken out of the context to advance the petitioners’ case against the 1 st and 2 nd respondent, and to an extent, the 3 rd respondent. No serious answer has been given to that contention. The use of such information before the Court, accessed without following the requisite procedures, not only renders it inadmissible but also impacts on the probative value of such information. This is the point of divergence between the instant matter and the case of Nicholas Randa Ombija vs Judges and Magistrates Vetting Board (supra). In the present instances, there has been a clear violation of laid out procedure of law attributable to access of information and violation of the rights of privacy and protection of property that the 2 nd respondent is guaranteed under the Constitution….
36. Further reliance was placed in the decision in Mohammed Feisal & 19 Others vs Henry Kandie, Chief Inspector of Police, OCS Ongata Rongai Police station & 7 Others; National Police Service Commission & Another (Interested Party) [2018] eKLR in determining whether the use of such evidence would render the trial unfair or otherwise detrimental to the administration of justice. The Honourable Court stated:-
To arrest, detain or investigate must be accrued out within constitutionally permissible parameters. Therefore, any system of law which keeps in mind the constitutional provisions must ask the fundamental question whether in order to fight crime its necessary to derogate from the bill of rights entitlements by denying a suspect of misdemeanours right to liberty, freedom, dignity, equality, freedom from torture, degrading and inhuman treatment. The act of apprehending a person without notice even if its for a short period has far reaching effect on his or her rights to human dignity. I have in view the harm done to the individual and his or her family before the investigations are carried out and a decision is made of charging him or her before a court of law. First, being on suspicion the right to liberty and security of person under Article 29 of the Constitution should not be interfered with arbitrarily to confine the individual to a police station or detention facility. Furthermore, the maxim innocent until proven guilty is one of our key pillars in the administration of justice.
37. The petitioner argued that the investigation of any alleged crime however serious must be done in utmost adherence to the Constitution. Further, Article 244 specifically obligates the 1 st respondent to comply with the constitutional standards of human rights and fundamental freedoms. Additionally, to allow evidence deliberately obtained by violation of human rights creates a market for it and condones impunity in the administration of justice and will always be detrimental to the administration of justice. In support reliance was placed in the case of Philomena Mbete Mwilu vs Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested Party) International Commission of Jurist Kenya Chapter (Amicus Curiae) (2019) eKLR where the court stated:
Evidence must be excluded only if it (a) renders the trial unfair; or (b) is otherwise detrimental to the administration of justice. This entails that admitting impugned evidence could damage the administration of justice in ways that would leave the fairness of the trial intact; but where admitting the evidence renders the trial itself unfair, the administration of justice is always damaged. Differently put, evidence must be excluded in all cases where its admission is detrimental to the administration of justice, including the subset of cases where it renders the trial unfair. The provision plainly envisages cases where evidence should be excluded from broad public policy reasons beyond fairness to the individual accused.
The 1 st & 3 rd Respondents Submissions.
38. The respondents cited the case of Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 others [2014] eKLR which stated:
Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs Republic (1979) KLR 154 : the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
39. The respondents argued that the arrest and charging of the petitioner in the criminal case cannot be said to be in contravention of Article 28 of the Constitution. Furthermore, the freedom of the petitioner may be curtailed by the sustenance of the criminal case but the same is within the law and cannot be said to be in violation of Article 29 of the Constitution.
40. Regarding the right to be presented in court within 24 hours of arrest, the respondents relied on the case of Kariuki vs Director of Public Prosecutions & 3 Others; Wangila & 2 Others (Interested Parties) (Petition E240 of 2022) [2024] KEHC 834 (KLR) where the court stated:-
When considering the question of violation or otherwise of the petitioner’s rights and fundamental freedoms under the Bill of Rights, arising from the allegation of failure to present him in court within the constitutional timelines, this Court must exercise caution in making any pronouncements at this stage. This issue is best raised in the trial court which will then make a determination on the same and the effect thereof on the proceedings before it. Any finding by this Court on the issue at this stage will be prejudicial to the pending proceedings in the criminal case and eventual outcome.
41. The respondents argued that the issue of the manner in which the evidence that the prosecution intends to rely on was obtained is immaterial as the petitioner will be accorded an opportunity before the trial court to adduce and challenge the evidence. Further the statements recorded by the petitioner under caution have not in any way been relied on as a confession or evidence in the criminal trial. The respondent further submitted that the 1 st respondent undertook extensive investigations into the matter and recorded statements from various witnesses as is required by law before submitting the file to the 3 rd respondent for directions and advice. The respondents argued that the criminal justice system is a process anchored in the constitution and the law and arresting and charging of persons on account of criminal culpability is part of the system. In support reliance was placed in the decision of Republic vs Service & 2 Others; Resilient Investments Limited & 3 Others (Interested Party); Limited ( ex parte ) (Judicial Review Application E037 of 2021) [2022] KEHC 43 (KLR) where Mativo J (as he then was) stated:-
The legislative intent in that the investigative officer records statements of persons acquainted with the facts of the case promptly to preserve the best evidence and to check any manipulation on the part of witnesses. It is presumed that spontaneity ensures the truth of details of incident and participants therein and delay generally occasions manipulations and colouring. Therefore, the investigating officers are required to record statements of persons acquainted with the facts promptly and failure to do so is a serious matter.
42. The respondents asserted that the decision to charge the Petitioner was made by the 3 rd respondent upon consideration of the available evidence and the petitioner has not shown how the 1 st respondent breached Article 157(11) of the Constitution in instituting the impugned criminal proceedings. Further reliance was placed on the case of Republic vs Director of Public Prosecution & 2 Others ex parte Francis Njakwe Maina & Another [2015] eKLR where it was observed that the court ought not to usurp the constitutional mandate of the Director of Prosecutions to undertake the prosecution in exercise of the discretion conferred upon the said office. The respondents further argued that the DPP derives its prosecutorial power from the Constitution and the ODPP Act. The respondents cited the case of Martin Muswanya Nyakiamo vs Director of Public Prosecution & 2 Others; Charles Ogega Ongwae & 5 Others (Interested Parties) [2022] eKLR where the court held:-
Whereas the petitioners have a right not to be subjected to an illegal and/or unwarranted criminal process, the DPP is also under a public duty to ensure that offences are prosecuted and those culpable attended to as the law requires. That is the balance created by the law and which this Court is called upon to serious undertake. In fact, that is the essence of the rule of law.
43. The respondents cited Article 157(11) of the Constitution and submitted that the petitioner did not demonstrate that the decision to prosecute him was against public interest; does not further interests of the administration of justice or that it is an abuse of the legal
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