' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CONSTITUTIONAL PETITION NO. E001 OF 2023
(CORAM: HON. CHARLES M. KARIUKI – J)
IN THE MATTER OF ARTICLES 1,2,3,10,19,20,21,22,23,24,25,27,35,40,159,160, 258 AND 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 24, 27, 28, 38, 55, 81, 174, 232 AND 238 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF NATIONAL POLICE SERVICE COMMISSION ACT
BETWEEN
RUCY CHEBET SALE………………………………….……………. PETITIONER
-VERSUS-
THE OCS MANGA POLICE STATION……………………...….1 ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE………...………….2 ND RESPONDENT
THE ATTORNEY GENERAL……………………………….……3 RD RESPONDENT
JUDGMENT
By Petition dated 27.07.2021, the Petitioner sought: -
A declaration that the Respondents are bound by the provisions of the law and the constitution to wit rule of law, democracy, integrity, transparency and accountability.
A declaration that the Respondents’ action to take, confiscate, and handing over of the 17 heads of cattle is illegal, unconstitutional, and ultravires the constitution.
An order to compel the Respondent to comply with the constitution in a procedural, transparent and legal manner.
An order to compel the Respondent to hand over the 17 heads of cattle together with their off springs to the Petitioner and/or in the alternative to pay compensation for each cow at a total value of 1.8 million.
The Respondents to pay the costs of suit.
They averred that on 23.11.2018 Police Agent of 1 st and 2 nd Respondent confiscated 17 herds of cattle and the same vanished in their hands/custody/possession. Thus, they filed claims here over their rights to property vide Article 40 Constitution of Kenya. The matter came for directions as parties were directed to canvass Petition via Submissions as they proposed to so via that pathway.
Petitioners case
The petitioner states in her supporting affidavit dated 27th July 2021 at paragraph 3 that, her 17 heads of cattle were confiscated and were taken away by Police officers from Manga Police Station Borabu Sub-County Nyamira County after losing track of stolen cattle. The confiscation of cattle was casual and arbitrary
That even after reporting the incident at Abosi Police Station she made several visits to Manga Police Station to ask for her cattle and eventually the OCS by the name Josphat Chacha threatened and, harassed her before the said cattle mysteriously disappeared from the Manga Police station yet the Police Officers who are required to observe provisions of Article 244 of the Constitution of Kenya 2010 which demands that they comply with Constitutional Standards of human Rights and fundamental freedoms; and transparency and accountability.
In our case the Police Officers without any explanation made by the O.C.S Manga or any other Officers failed to account for the disappearance of cows, the petitioner petitioned IPOA vide petition dated 15th October 2019 but no action was taken which was a violation of Article 244 and 40 of the Constitution.
Forthcoming on the misconduct of the O.C.S Manga police station and its police officers the petitioner from her own knowledge of various descriptions of her cattle annexed and marked as RC2 in the supporting affidavit.
The police violated Article 40 by failing to protect property and instead aided and abeted
In the confiscation and disappearance of the property (17 cows). The police are mandated to provide security to the property and not to abete laid in disappearance which is not their duty to provide security to the property and not to abete laid in disappearance which is not their duty under the constitution and the law. The duty of the police is to protect property and life. The petitioners specifically pleaded the violation of Article 40 and 244 of the constitution by swearing affidavit in that she lost 17 cows when they were taken by the police without proper exercise of right.
In the case of Miachel Mutuku Mulinge -v- Attorney General (2017) KEHC 5617 (KLR) the Petitioner Miachel Mutuku Mulinge alleged that his constitutional right to property und been violated. He claimed that a cow stolen from his home was recovered to him, but was later seized by the police and given to a third party without his consent.
The High Court at Machakos found that the petitioner failed to provide sufficient evidence to support his claim of violation of rights. The court emphasized the necessity for petitioners to set out with reasonable precision the specific provisions of the constitution that are alleged to be infringed and the manner in which they are alleged to be infringed. The court therefore dismissed the petition and ordered each party to bear its own costs.
However, in the instant case the Petitioner has pleaded specifically article 40 to have been n violated fundamental right to own property. The Petitioner has proved the violation by swearing an affidavit and annexed documents.
The petitioner petitioned IPOA vide petition dated 15th October 2019 but no action was forthcoming likewise she petitioned division CID Trans Mara West through a letter dated 8th January 2020 and also a complain dated 21 st May 2021
was reported by the nation media in a bid to have her cattle back that were confiscated by police Manga police station without any reasons.
The grounds of opposition filed by the Respondents are merely opposing the petition a in their paragraph 4 the petitioner has attempted A.D.R to no success and resolved to approach this Honourable Court for hearing and determination of the matter.
Preliminary issues
The case entails Taking someone''s cattle, which are personal property , is actionable in tort law under the category of conversion , an intentional tort where someone interferes with the property rights of another, or potentially trespass to chattels , depending on the severity of the interference. While the question mentions immovable property, cattle are considered movable personal property (chattels), so a tort concerning them would fall under property torts related to personal goods, not land.
Key Torts Involved: Conversion : This is a serious interference with another person''s property, amounting to a total or substantial deprivation of the owner''s use and enjoyment of their property, such as stealing someone''s cattle. Trespass to Chattels :
This is a less serious intentional interference with personal property, where someone intentionally meddles with or interferes with the possession or use of another''s goods without permission. The key is that the interference must be substantial enough to be a tort, but not so complete as to be considered conversion.
Why Cattle Are Relevant: Cattle, as living, movable creatures, are considered chattels or personal property under tort law. Therefore, any intentional taking or serious interference with them by someone not entitled to do so would give rise to a claim in tort. The claimant quantifies the 17 cattle to ksh1.8million which he needs as compensation for loss of the same.
The Doctrine of Constitutional Avoidance in Kenya mandates that courts should refrain from deciding constitutional issues when a case can be resolved on other legal grounds, promoting judicial efficiency and respect for the separation of powers.
Overview of the Doctrine
The Doctrine of Constitutional Avoidance, also known as the principle of avoidance, is a fundamental principle in Kenyan constitutional law. It asserts that courts should avoid ruling on constitutional questions if a case can be resolved through other legal avenues. This doctrine is rooted in the belief that constitutional adjudication should be a last resort, preserving the integrity and stability of the constitution.
The Supreme Court of Kenya, followed this traditional road and adopted the principle of constitutional avoidance in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others at paragraphs 256- 258 in the following terms:4 The appellants in this case are seeking to invoke the “ principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
In South Africa, in S v Mhlungu, 1995 (3) SA 867 (CC) t he Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority judgment as follows [at paragraph 59] ‘I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. ’ Similarly, the US Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of ( Ashwander v Tennessee Valley Authority, 297 US 288, 347 (1936)).
From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court. In effect, while the Constitution is the foundational source of norms and adjudicative co-ordinates, the doctrine of avoidance instructs that it influences the legal system indirectly.
Its demand in the adjudication process is extracted from legislation, common law, and customary law. Thus, one must seek recourse in secondary norms first. These considerations yield the norm that a litigant cannot directly invoke the Constitution (through a constitutional petition) to extract a right he or she seeks to enforce without first either predicating the case on a legislation that is a normative derivative of the Constitution or challenging the constitutionality of such a derivative statute. Once a derivative statute intended to fulfil the normative demands of a constitutional provision has been enacted, the Constitution is relegated to a background role and ceases to be the primary avenue of enforcement of constitutional aspirations and demands. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.
Historical Context
The doctrine has its origins in the landmark case of Anarita Karimi Njeru v Republic (1979), where the court emphasized the need for precision in drafting constitutional petitions. The ruling established that parties seeking constitutional remedies must clearly outline the specific provisions alleged to be infringed and the manner of the infringement. This principle has been consistently upheld in subsequent cases, reinforcing the requirement for litigants to plead their cases with a high degree of specificity.
Application in Case Law
The application of the Doctrine of Constitutional Avoidance has been evident in various cases. For instance, in the Consumer Federation of Kenya v Toyota Motors Corporation (2018), the court reiterated that disputes capable of resolution through other legal forums should not invoke constitutional jurisdiction. This approach helps to prevent the misuse of constitutional petitions for issues that can be adequately addressed through alternative legal channels.
In another significant case, Mumo Matemu v Trusted Society of Human Rights Alliance (2013), the Court of Appeal upheld the principles established in the Anarita Karimi case, emphasizing that the precision requirement is not about exactitude but about ensuring that the court can focus on the real issues at hand, thereby conserving judicial resources.
Implications for Legal Practice
The Doctrine of Constitutional Avoidance has significant implications for legal practice in Kenya. It encourages lawyers to carefully consider whether a constitutional issue is genuinely at stake before filing petitions. This not only streamlines the judicial process but also ensures that constitutional courts are not overwhelmed with cases that could be resolved through other means.
In summary, the Doctrine of Constitutional Avoidance is a critical aspect of Kenyan constitutional law, promoting judicial efficiency and ensuring that constitutional issues are only addressed when necessary. It underscores the importance of precision in legal drafting and the need for litigants to explore all available legal remedies before resorting to constitutional claims. In the instant matter, the matter can be handled by the lowest level of the judiciary by Resident magistrate against police and the Attorney general for tort of taking illegally the animal’s subject matter.
It is totally unnecessary to file such a claim in the High and baptise it as constitution matter just to clog up the High court dairy and cause list. This case will entail to prove loss of cattle, their ownership and value via trial by way of viva voce evidence not just throwing submissions to the court. Thus, the court will strike out this case and direct same be filed and heard the normal way and statutes and common law legal frameworks AND RELEVANT COURT.
Thus, the court orders that, the petition is struck out with no orders as to costs.
The petitioner is at liberty to lodge the claim in lower court subject to the law of limitation of actions Act.
DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAROK THIS …3RD…DAY OF OCTOBER 2025
CHARLES KARIUKI
JUDGE
'
IN THE HIGH COURT OF KENYA AT KILGORIS
CONSTITUTIONAL PETITION NO. E001 OF 2023
(CORAM: HON. CHARLES M. KARIUKI – J)
IN THE MATTER OF ARTICLES 1,2,3,10,19,20,21,22,23,24,25,27,35,40,159,160, 258 AND 259 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 24, 27, 28, 38, 55, 81, 174, 232 AND 238 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF NATIONAL POLICE SERVICE COMMISSION ACT
BETWEEN
RUCY CHEBET SALE………………………………….……………. PETITIONER
-VERSUS-
THE OCS MANGA POLICE STATION……………………...….1 ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE………...………….2 ND RESPONDENT
THE ATTORNEY GENERAL……………………………….……3 RD RESPONDENT
JUDGMENT
By Petition dated 27.07.2021, the Petitioner sought: -
A declaration that the Respondents are bound by the provisions of the law and the constitution to wit rule of law, democracy, integrity, transparency and accountability.
A declaration that the Respondents’ action to take, confiscate, and handing over of the 17 heads of cattle is illegal, unconstitutional, and ultravires the constitution.
An order to compel the Respondent to comply with the constitution in a procedural, transparent and legal manner.
An order to compel the Respondent to hand over the 17 heads of cattle together with their off springs to the Petitioner and/or in the alternative to pay compensation for each cow at a total value of 1.8 million.
The Respondents to pay the costs of suit.
They averred that on 23.11.2018 Police Agent of 1 st and 2 nd Respondent confiscated 17 herds of cattle and the same vanished in their hands/custody/possession. Thus, they filed claims here over their rights to property vide Article 40 Constitution of Kenya. The matter came for directions as parties were directed to canvass Petition via Submissions as they proposed to so via that pathway.
Petitioners case
The petitioner states in her supporting affidavit dated 27th July 2021 at paragraph 3 that, her 17 heads of cattle were confiscated and were taken away by Police officers from Manga Police Station Borabu Sub-County Nyamira County after losing track of stolen cattle. The confiscation of cattle was casual and arbitrary
That even after reporting the incident at Abosi Police Station she made several visits to Manga Police Station to ask for her cattle and eventually the OCS by the name Josphat Chacha threatened and, harassed her before the said cattle mysteriously disappeared from the Manga Police station yet the Police Officers who are required to observe provisions of Article 244 of the Constitution of Kenya 2010 which demands that they comply with Constitutional Standards of human Rights and fundamental freedoms; and transparency and accountability.
In our case the Police Officers without any explanation made by the O.C.S Manga or any other Officers failed to account for the disappearance of cows, the petitioner petitioned IPOA vide petition dated 15th October 2019 but no action was taken which was a violation of Article 244 and 40 of the Constitution.
Forthcoming on the misconduct of the O.C.S Manga police station and its police officers the petitioner from her own knowledge of various descriptions of her cattle annexed and marked as RC2 in the supporting affidavit.
The police violated Article 40 by failing to protect property and instead aided and abeted
In the confiscation and disappearance of the property (17 cows). The police are mandated to provide security to the property and not to abete laid in disappearance which is not their duty to provide security to the property and not to abete laid in disappearance which is not their duty under the constitution and the law. The duty of the police is to protect property and life. The petitioners specifically pleaded the violation of Article 40 and 244 of the constitution by swearing affidavit in that she lost 17 cows when they were taken by the police without proper exercise of right.
In the case of Miachel Mutuku Mulinge -v- Attorney General (2017) KEHC 5617 (KLR) the Petitioner Miachel Mutuku Mulinge alleged that his constitutional right to property und been violated. He claimed that a cow stolen from his home was recovered to him, but was later seized by the police and given to a third party without his consent.
The High Court at Machakos found that the petitioner failed to provide sufficient evidence to support his claim of violation of rights. The court emphasized the necessity for petitioners to set out with reasonable precision the specific provisions of the constitution that are alleged to be infringed and the manner in which they are alleged to be infringed. The court therefore dismissed the petition and ordered each party to bear its own costs.
However, in the instant case the Petitioner has pleaded specifically article 40 to have been n violated fundamental right to own property. The Petitioner has proved the violation by swearing an affidavit and annexed documents.
The petitioner petitioned IPOA vide petition dated 15th October 2019 but no action was forthcoming likewise she petitioned division CID Trans Mara West through a letter dated 8th January 2020 and also a complain dated 21 st May 2021
was reported by the nation media in a bid to have her cattle back that were confiscated by police Manga police station without any reasons.
The grounds of opposition filed by the Respondents are merely opposing the petition a in their paragraph 4 the petitioner has attempted A.D.R to no success and resolved to approach this Honourable Court for hearing and determination of the matter.
Preliminary issues
The case entails Taking someone''s cattle, which are personal property , is actionable in tort law under the category of conversion , an intentional tort where someone interferes with the property rights of another, or potentially trespass to chattels , depending on the severity of the interference. While the question mentions immovable property, cattle are considered movable personal property (chattels), so a tort concerning them would fall under property torts related to personal goods, not land.
Key Torts Involved: Conversion : This is a serious interference with another person''s property, amounting to a total or substantial deprivation of the owner''s use and enjoyment of their property, such as stealing someone''s cattle. Trespass to Chattels :
This is a less serious intentional interference with personal property, where someone intentionally meddles with or interferes with the possession or use of another''s goods without permission. The key is that the interference must be substantial enough to be a tort, but not so complete as to be considered conversion.
Why Cattle Are Relevant: Cattle, as living, movable creatures, are considered chattels or personal property under tort law. Therefore, any intentional taking or serious interference with them by someone not entitled to do so would give rise to a claim in tort. The claimant quantifies the 17 cattle to ksh1.8million which he needs as compensation for loss of the same.
The Doctrine of Constitutional Avoidance in Kenya mandates that courts should refrain from deciding constitutional issues when a case can be resolved on other legal grounds, promoting judicial efficiency and respect for the separation of powers.
Overview of the Doctrine
The Doctrine of Constitutional Avoidance, also known as the principle of avoidance, is a fundamental principle in Kenyan constitutional law. It asserts that courts should avoid ruling on constitutional questions if a case can be resolved through other legal avenues. This doctrine is rooted in the belief that constitutional adjudication should be a last resort, preserving the integrity and stability of the constitution.
The Supreme Court of Kenya, followed this traditional road and adopted the principle of constitutional avoidance in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others at paragraphs 256- 258 in the following terms:4 The appellants in this case are seeking to invoke the “ principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.
In South Africa, in S v Mhlungu, 1995 (3) SA 867 (CC) t he Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority judgment as follows [at paragraph 59] ‘I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. ’ Similarly, the US Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of ( Ashwander v Tennessee Valley Authority, 297 US 288, 347 (1936)).
From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court. In effect, while the Constitution is the foundational source of norms and adjudicative co-ordinates, the doctrine of avoidance instructs that it influences the legal system indirectly.
Its demand in the adjudication process is extracted from legislation, common law, and customary law. Thus, one must seek recourse in secondary norms first. These considerations yield the norm that a litigant cannot directly invoke the Constitution (through a constitutional petition) to extract a right he or she seeks to enforce without first either predicating the case on a legislation that is a normative derivative of the Constitution or challenging the constitutionality of such a derivative statute. Once a derivative statute intended to fulfil the normative demands of a constitutional provision has been enacted, the Constitution is relegated to a background role and ceases to be the primary avenue of enforcement of constitutional aspirations and demands. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role.
Historical Context
The doctrine has its origins in the landmark case of Anarita Karimi Njeru v Republic (1979), where the court emphasized the need for precision in drafting constitutional petitions. The ruling established that parties seeking constitutional remedies must clearly outline the specific provisions alleged to be infringed and the manner of the infringement. This principle has been consistently upheld in subsequent cases, reinforcing the requirement for litigants to plead their cases with a high degree of specificity.
Application in Case Law
The application of the Doctrine of Constitutional Avoidance has been evident in various cases. For instance, in the Consumer Federation of Kenya v Toyota Motors Corporation (2018), the court reiterated that disputes capable of resolution through other legal forums should not invoke constitutional jurisdiction. This approach helps to prevent the misuse of constitutional petitions for issues that can be adequately addressed through alternative legal channels.
In another significant case, Mumo Matemu v Trusted Society of Human Rights Alliance (2013), the Court of Appeal upheld the principles established in the Anarita Karimi case, emphasizing that the precision requirement is not about exactitude but about ensuring that the court can focus on the real issues at hand, thereby conserving judicial resources.
Implications for Legal Practice
The Doctrine of Constitutional Avoidance has significant implications for legal practice in Kenya. It encourages lawyers to carefully consider whether a constitutional issue is genuinely at stake before filing petitions. This not only streamlines the judicial process but also ensures that constitutional courts are not overwhelmed with cases that could be resolved through other means.
In summary, the Doctrine of Constitutional Avoidance is a critical aspect of Kenyan constitutional law, promoting judicial efficiency and ensuring that constitutional issues are only addressed when necessary. It underscores the importance of precision in legal drafting and the need for litigants to explore all available legal remedies before resorting to constitutional claims. In the instant matter, the matter can be handled by the lowest level of the judiciary by Resident magistrate against police and the Attorney general for tort of taking illegally the animal’s subject matter.
It is totally unnecessary to file such a claim in the High and baptise it as constitution matter just to clog up the High court dairy and cause list. This case will entail to prove loss of cattle, their ownership and value via trial by way of viva voce evidence not just throwing submissions to the court. Thus, the court will strike out this case and direct same be filed and heard the normal way and statutes and common law legal frameworks AND RELEVANT COURT.
Thus, the court orders that, the petition is struck out with no orders as to costs.
The petitioner is at liberty to lodge the claim in lower court subject to the law of limitation of actions Act.
DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAROK THIS …3RD…DAY OF OCTOBER 2025
CHARLES KARIUKI
JUDGE
'