A loan agreement is a distinct legal obligation which is independent of an employment contract

Jim Kennedy Kiriro Njeru v Equity Bank (K) Limited

Civil Suit No 47 of 2018

(Formerly Kajiado ELC Civil Suit No 673 of 2017)

High Court at Kajiado

R Nyakundi, J

March 1, 2019

Reported by Ian Kiptoo

Land Law-mortgages and charges-interest chargeable-where a chargor was an employee of a chargee-where employment conferred an advantage of lower interest rate of 5%-where a clause stated that the interest rate chargeable would revert to commercial rate once employment ceased-whether a loan agreement made between a bank, being an employer, and a borrower, being the employee, was dependent on an employment contract in regards to rate of chargeable interest

Land Law-mortgages and charges-statutory power of sale-where rate of interest was in dispute-whether a dispute touching on amount payable or chargeable interest in a loan agreement was a restraint on a chargee from exercising its statutory power of sale-whether a dispute involving interest rate chargeable exempted a borrower from paying the principal amount of a loan facility-Land Act, sections 90 and 96

Brief Facts

The plaintiff sought temporary injunction orders restraining the defendant from selling or advertising for sale by way of private treaty or by public action the suit property. The plaintiff was a former employee of the defendant whose employment was terminated by the defendant. Subsequent to the termination, the plaintiff together with other colleagues instituted a suit in the Employment and Labour Relations Court (ELC) at Nairobi where the Court ordered that the loan facilities taken out by the plaintiff and his colleagues would suffer immensely if the loans were converted to commercial rates.

The plaintiff’s main ground was that despite the pendency of suit, the defendant had ignored and/or disregarded the Employment and Labour Relations Court ruling directing it to accord to the plaintiff all the benefits of an employee, and in particular, the defendant had converted the interest rate of his loan to a commercial one and was now subjected to an interest rate of 18% as opposed to the staff rate of 5% making it difficult for the plaintiff to continue servicing the loan as he was still unemployed.

Issues

1. Whether a loan agreement made between a bank, being an employer, and a borrower, being the employee, was dependent on an employment contract in regards to rate of chargeable interest.
2. Whether a dispute touching on amount payable or chargeable interest in a loan agreement was a restraint on a chargee from exercising its statutory power of sale.
3. Whether a dispute involving interest rate chargeable exempted a borrower from paying the principal amount of a loan facility.

Held

1. In applications for an interlocutory injunction, the burden resided with the applicant to prove to the satisfaction of the Court that the same should be granted. It was also noteworthy that an injunction was a discretionary remedy and was granted on the basis of evidence and sound legal principles. The principles for grant of temporary injunctions were well set out in the celebrated case of Giella v Cassman Brown and Company Limited.
2. It was not in dispute that the plaintiff was an employee of the defendant bank until July 2, 2015 when the defendant bank terminated his contract. It was also not in dispute that the plaintiff obtained financial accommodation from the defendant bank vide a letter of offer dated June 13, 2011, amounting to Kshs 3,500,000/= at an interest rate of 5% per annum. The loan facility was secured by a legal charge over the suit property registered in the plaintiff’s name.
3. The plaintiff’s contention was heavily anchored on the issue of interest payable. It was within the bank’s powers to convert the said interest rate of 5% to commercial rate pursuant to clause 4 of the charge dated June 13, 2011.Although the plaintiff obtained the loan facility during the course of employment to the defendant bank, a loan agreement was a distinct legal obligation which was independent of the employment.
4.  The role played by employment in the instant scenario was to confer an advantage by way of certain privileges to the plaintiff for instance the enjoyment of lower interest rate of 5% accorded to all employees of the defendant bank instead of them being subjected to commercial rates.
5. The privileges as expressly stated under clause 4 of the Charge dated June 13, 2011 ended upon the employee’s departure from the employment. Thus the departure of the plaintiff from the Bank had a bearing only to the interest rate payable to the defendant bank and not the repayment of the principal amount.
6. The question of interest rate was unambiguously dealt with in ELRC Cause No. 1430 of 2015 and the defendant bank was ordered to refrain from converting it to a commercial one unless or until the ELC suit had been heard and determined contrary to the defendant bank’s contention that no such orders were issued in the ruling. Therefore, if at all the Bank converted the said interest to commercial interest rate, the same was done with blatant disregard of the order of the Court and should be treated with contempt it deserved.
7. In accordance with the already existing jurisprudence, a dispute touching on the amount payable or interest chargeable without more was not a ground for restraining a chargee from exercising its statutory power of sale. Circumstances in which a mortgagee or chargee could be restrained from exercising his statutory power of sale were set out
8. There was no doubt that the plaintiff owed the defendant bank a substantial amount of money. A chargee could not be restrained from exercising its power of sale merely because there existed a dispute as to the amount owing or interest charged. However, the chargee could be restrained where the amount claimed was paid in court or was excessive and unconscionable, and or the interest charged was uncontractual or illegal.
9. The existence of a dispute touching on the interest rate payable was not an excuse for non-repayment of the principal amount of the loan facility. Thus despite existence of a dispute on interest rate payable, the borrower should be able to continue repaying at least the principal amount of the loan facility pending the determination of the dispute on interest payable. Evidence that the borrower continued repayment of the loan facility or at least the principal amount or proof of his willingness to do so was paramount.
10.  Despite the fact that the issue of interest had been in dispute, it was not in dispute that the plaintiff defaulted repayment of the said financial accommodation. The fact that the Court in ELRC Cause No. 1430 of 2015 ordered the Bank not to convert the interest rate to a commercial one until the ELRC suit was heard and determined did not grant the plaintiff from continuing to repay the mortgage.
11. It had been three years since the Court order was issued and it seemed the plaintiff had not made any effort to service the loan in question since no piece of evidence had been produced to that effect. The plaintiff, before challenging the issue of interest charged and or amount owing ought to have produced evidence before court to show that the principal amount of the loan advanced to him was repaid or he had been making an effort or signs of his willingness to regularize his loan account as required by the contract they entered into.
12. Disputes as regards interest charged had to be seen as a subsidiary issue which could only be given enough attention where the chargor had honoured his obligations to repay the loan or where a chargor in default showed willingness to repay the outstanding amount of money owed to the lender. The same was not shown in the case.
13. The parties entered into a loan contract which was dully and willfully executed by both parties. The said contract conferred rights and obligations to the parties which included the obligation borne by the plaintiff to repay the loan facility according to the terms of the contract. The defendant was also clothed with power of sale upon default of repayment of the loan facility by the plaintiff pursuant to section 90 and 96 of the Land Act, 2012.
14. Nowhere, in the contract that the parties signed, was it expressly stated that incase of default, the monies which the plaintiff was claiming would be used to offset the loan facility. That was not to say it was wrong for the Bank to do so as an alternative to recover its monies from the borrower, but the plaintiff should not be allowed to the same as an excuse for not repaying the loan facility for the past three years as agreed upon in the loan agreement or at least making an effort or showing willingness to do so.
15. The said claims advanced by the plaintiff had no bearing to the default and repayment of the loan amount as far as the loan agreement was concerned. Neither was the exact amount of the monies he was claiming were known which an issue was pending determination in the ELRC. The same could be used to hinder the defendant bank from recovering its loan amount as per the agreement they entered into.
16. As much as it was important to preserve the plaintiff’s right to property pursuant to article 40 of the Constitution of Kenya, 2010. It was also of utmost importance that the interest and rights of the chargee or defendant bank to the mortgage in question had to be protected. The Court was alive to the fact that the plaintiff was likely to lose the suit property, which was his family home and his only source of livelihood. Since the suit property was given as security for the loan, it became a commodity for sale and it was therefore subject to sale in case of default in loan repayment in the event that the chargee decided to exercise its statutory power of sale pursuant to the provisions of section 90 and 96 of the Land Act, 2012.
17. In absence of any effort from the plaintiff to rectify the default, the Court was not able to find that the plaintiff would suffer irreparable injury if the injunctive orders were not granted. On a balance of convenience, from the facts and materials presented, the balance tilted in favour of the defendant bank bearing in mind that the bank was in a business of selling money to earn some profit. Having established that the interests of the Bank were in imminent need of protection at that point, the Court was unable to agree with the plaintiff’s contention that he was more likely to suffer more inconvenience than the Bank if the injunction was disallowed.
18. The plaintiff had failed to establish a prima facie case to meet the threshold for the grant of the order sought. If the defendant bank wished to exercise its statutory power of sale, it had to issue fresh statutory notices and ensure an updated valuation report was prepared as required by the law and also to enable the plaintiff have ample time to try and rectify the default.

Application dismissed, costs would be in the cause.

Advocate awarded Kshs 3 million for unlawful arrest while representing a client

Mohamed Feisal& 19 othsers v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR

Constitutional Petition No. 14 of 2017

High Court at Kajiado

R Nyakundi, J

December 20, 2018.

Reported By Kakai Toili

Criminal Law-arrests and detention-exercise of the power to arrest by police officers-what were the circumstances in which police officers could exercise their power to arrest-what were the factors to be considered in determining a false arrest-what were the factors to be considered by police officers before arresting a person for a cognizable offence-what were the circumstances in which an advocate representing a client at the police station could be arrested-Constitution of Kenya, 2010 article 27; Criminal Procedure Code, section 29; National Police Service Act, section 58; Penal Code, section 182

Constitutional Law-constitutional petitions-institution of constitutional petitions-requirements-where one instituted a constitutional petition on behalf of others-what were the requirements for one to institute a constitutional petition on behalf of others-Constitution of Kenya, 2010, article 3(1) & 22(2) (b)

Constitutional Law-fundamental rights and freedoms-enforcement of fundamental rights and freedoms- right to freedom and security of the person-denial of the right to freedom and security of the person-administrative detention- what were the requirements to be fulfilled before administrative detention could be allowed-Constitution of Kenya, 2010, article, 28; Criminal Procedure Code, section 36; International Covenant on Civil and Political Rights, article 9

Evidence Law-standard of proof-standard of proof for unlawful arrest-factors to be considered-what were the factors required to prove wrongful arrests

Damages-nature of damages-unlawful arrest and detention-what was the nature of damages for unlawful arrest and detention

Constitutional Law-fundamental rights and freedoms-rights of arrested persons-constitutionality threshold of an offence when it came to arrests-what were the key elements of constitutionality threshold of an offence when it came to arrests

Brief Facts

On the evening of June 4, 2016 at around 9.00pm, the 1^st to 19^th petitioners were arrested in Ongata Rongai town. They alleged that upon their arrest they were bundled into a police vehicle and threatened by the 3^rd, 4^th and 5^th respondents against making any phone calls. It was alleged that the 1^st and 2^nd petitioners defied that order and called the 20^th petitioner, an advocate of the High Court to come to their aid. The petitioners contended that they were held by the respondents in the police vehicle from the time of their arrest until 12:20 am on the following day when they were taken to Ongata Rongai police station, booked in for the offence of being idle and disorderly and placed in custody without being informed of the reasons for their arrest.

It was averred that the 20^th petitioner at Ongata Rongai police station pressed the officers on the reasons for the arrest of the other petitioners while trying to explain to the officers the rights of arrested persons. He was however arrested on the charge of creating disturbance in a police station. The 1^st to 19^th petitioners were released unconditionally with no charge being preferred against them. The 20^th petitioner on the other hand was released on a cash bail. Aggrieved by the respondents’ actions the petitioners filed the instant petition. The petitioners claimed that by unlawfully arresting and detaining them, the respondents breached their fundamental rights and freedoms guaranteed by the Constitution.

Issues

1. What were the circumstances in which an advocate representing a client at a police station could be arrested?
2. What were the requirements for one to institute a constitutional petition on behalf of others?
3. What were the requirements to be fulfilled before administrative detention could be allowed?
4. What were the factors required to prove wrongful arrest?
5. What was the nature of damages to be awarded for unlawful arrest and detention?
6. What were the circumstances in which police officers could exercise their power to arrest?
7. What were the factors to be considered in determining a false arrest?
8. What were the factors to be considered by police officers before arresting a person for a cognizable offence?
9. What were the key elements of constitutionality threshold of an offence when it came to arrests?

Relevant Provisions of the Law

Constitution of Kenya, 2010

Article 22

1. Every person has the right to institute court proceedings claiming that a right or a fundamental freedom in the Bill of Rights has been denied. violated or infringed, or is threatened.
2. In addition to a person acting in their own interest, court proceedings under clause may be instituted by –

A person acting on behalf of another person who cannot act in their own name;

A person acting as a member of, or in the interest of a group or class of persons;

A person acting in the public interest; or

An Association acting in the interest of one or more of its members.’

Article 49 - Rights of Arrested Persons

1. An arrested person has the right—
   1. to be informed promptly, in language that the person understands, of (i) the reason for the arrest; (ii) the right to remain silent; and (iii) the consequences of not remaining silent;
   2. to remain silent;
   3. to communicate with an advocate, and other persons whose assistance is necessary;
   4. not to be compelled to make any confession or admission that could be used in evidence against the person;
   5. to be held separately from persons who are serving a sentence;
   6. to be brought before a court as soon as reasonably possible, but not later than— (i) twenty-four hours after being arrested; or (ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;
   7. at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and
   8. to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
2. A person shall not be remanded in custody for an offence if the offence

Penal Code

Section 182 - Idle and disorderly persons

The following persons—

1. every common prostitute behaving in a disorderly or indecent manner in any public place;
2. every person causing, procuring or encouraging any person to beg or gather alms;
3. deleted by Act No. 61 of 1968, s. 22;
4. every person who publicly conducts himself in a manner likely to cause a breach of the peace;
5. every person who without lawful excuse publicly does any indecent act;
6. every person who in any public place solicits for immoral purposes;
7. deleted by Act No. 61 of 1968, s. 22,

shall be deemed idle and disorderly persons, and are guilty of a misdemeanour and are liable for the first offence to imprisonment for one month or to a fine not exceeding one hundred shillings, or to both and for every subsequent offence to imprisonment for one year.

Criminal Procedure Code

Section 29 - Arrest by police officer without warrant

A police officer may, without an order from a magistrate and without a warrant, arrest—

1. any person whom he suspects upon reasonable grounds of having committed a cognizable offence;
2. any person who commits a breach of the peace in his presence;
3. …
4. …
5. …
6. …
7. any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;

Section 36 - Detention of persons arrested without warrant

When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable:

Provided that an officer in charge of a police station may release a person arrested on suspicion on a charge of committing an offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.

National Police Service Act

Section 58 - Power to arrest without a warrant

Subject to Article 49 of the Constitution, a police officer may without a warrant, arrest a person—

1. …
2. …
3. whom the police officer suspects on reasonable grounds of having committed a cognizable offence;
4. who commits a breach of the peace in the presence of the police

            officer;

International Covenant on Civil and Political Rights

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Held

1. When considering whether a party had locus standi, courts generally took a liberalized approach especially in matters related to the upholding of the bill of rights. All the petitioners had to do was bring themselves within the umbrella of article 22(2)(b) of the Constitution. By virtue of the Authority to Represent that was signed by all the relevant petitioners, the 1^st, 2^nd and 20^th petitioners were acting on behalf of a group of persons as envisioned under article 22(2)(b) of the Constitution. In addition according to article (3) (1) of the Constitution every person had an obligation to respect, uphold and defend the Constitution.
2. The great mass of the Kenyan society were not educated or aware of their legal rights. They were of different class of people, lacked proper knowledge, poverty and disadvantaged towards enforcement of their infringed rights. The power to open the litigation space permitting any member of society to be at liberty to approach a constitutional court to articulate the infringement or violation of a right or rights was underpinned in the supremacy of the Constitution. The petitioners had the locus standi to institute the petition and the petition had been brought properly before the Court.
3. The existence of the power to arrest was one thing; the justification for the exercise of it was quite another thing. The law demanded that whenever an arrest was made, the accused person had a right to be informed not only that he was being arrested but also of the reasons or grounds for the arrest. Thus the police officer had to be able to justify the arrest apart from his power to do so. He did that by communicating to the arrested person the full particulars of the offence for which he was arrested or other grounds for such arrest at the time of the arrest. Thus it was incumbent upon those who deprived other persons of liberty in the discharge of what they conceived to be their duty to strictly and scrupulously observe the forms and rules of law. No arrest should be made by a police officer without a reasonable satisfaction reached after some investigation as to the geniuses and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.
4. The prohibition of arbitrary detention in article 9(1)of the International Covenant on Civil and Political Rights (ICCPR) acknowledged that administrative detention would occasionally be permissible in order to achieve particular aims. However, owing to the importance of the right to liberty, any restriction had to be necessary to achieve a particular legitimate aim and the degree to which the right to liberty was infringed had to be proportionate to achieving that aim. That involved consideration of whether there were less evasive means of achieving the same aim. The detention of an individual was justified only as a last resort where other, less severe measures had been considered and found to be insufficient to safeguard the end or public interest which could require that the person concerned be detained.
5. The protection of individuals from arbitrary punishment and abrogation of rights was one of the central purposes incumbent upon judicial process. Wrongful arrest involved deprivation of a person’s liberty; it consisted of arresting and holding a person without legal justification. Thus liability thereof was strict, a party needed not show that the person causing the arrest was at fault or that he was aware that the arrest was wrongful. It was one that fell under action injuriam, and so proof of damage was not necessary to support the action. 
6. Even if no pecuniary damage had been suffered, the court would not award a contemptuous figure for the infringement of the right to liberty. Damages for unlawful arrest and detention should be exemplary and punitive in order to deter would-be offenders. The petitioners only needed to prove that the arrest or detention was illegal which they did in the instant case. They did not have to prove that the respondents had intention to act illegally or to cause harm. In order to establish the lawfulness of an arrest without a warrant, the onus of proof resided with the respondents to show probable cause or reasonable suspicion.
7. In exercising the power to arrest, he had to act as an ordinary honest man would act on suspicions which had a reasonable basis and not merely on wild suspicion. However, the suspicion needed not be a matter of certainty or even probability, it had to not at the other extreme, be vague, remote or tenuous. It was a question of a feasibility possibility, a matter of likelihood. An arrest of a suspect should not be made unless and until his or her case had been investigated with sufficient evidence requiring an answer on the complaint. The starting point for the investigating officer was not to depart from the enforcement of a right to a fair hearing and due process.
8. Being a criminal offence both mens rea and actus reus were in issue to be proved by the State. Gone were the days when the marginalised members of the society were bundled into police cells under that rubric of offences, incapable of constituting any criminal elements. One wondered the sustainability of the offence of being idle and disorderly in Kenya’s statute books. That was save for being a fertile provision for the police to use it as a tool to infringe and or violate the right to equality and non-discrimination under article 27 of the Constitution. None of the middle income or economically advantaged class of the society found him or herself being arrested or indicted with those kind of offences.
9. The Court was not told what disorderly conduct any of the nineteen petitioners was involved in contravention of section 182 of the Penal Code to warrant arrest and detention. The occurrence book extract relied upon by the respondents to justify their action remained vague and ambiguous as to which specific provision of the idle and disorderly offence was breached by the petitioners. The fact that the petitioners were found moving or, standing, or seated, in or in an open area near a road or premises within Ongata Rongai Township was no answer to the action taken by the arresting officers. The law concerned with arrest and detention especially in relation to the instant case could be found in the Criminal Procedure Code as well as the National Police Service Act.
10. False arrest which was a civil wrong consisted of an unlawful restraint of an individual’s personal liberty or freedom of movement by another person purporting to act according to the law. The term false arrest was sometimes used interchangeably with the tort of false imprisonment and a false arrest was one method of committing a false imprisonment. A false arrest had to be perpetuated by one who asserted that he or she was acting pursuant to legal authority, whereas a false imprisonment was any unlawful confinement. Thus, where a police officer arrested a person without probable cause or reasonable basis, the officer was said to have committed a tort of false arrest and confinement. Thus, false imprisonment could be defined as an act which causes the unlawful confinement.
11. A determination on whether or not there was false imprisonment was predicated on the circumstances of each case. For the arrests of the petitioners to be deemed as lawful, the arrests were to be for a cognizable offence and that the respondents had reasonable grounds to believe the petitioners had committed such offence.
12. Reasonable and probable cause was an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.
13. No explanation was offered as to the prevailing circumstances that led the respondents to believe the 1^st to 19^th petitioners had committed the offence of being idle and disorderly. The Occurrence Book booking did no better in shedding light on the mysterious circumstances. All that was offered by way of explanation was that the respondents were within their powers conferred under section 29 of the Criminal Procedure Code and section 58 of the National Police Service Act. While the 1^st to 19^th petitioners could have been arrested on suspicion of committing a cognizable offence, those arrests were not made by police officers acting with reasonable cause.
14. In a constitutional democracy like Kenya’s it was imperative for citizens to have confidence and trust in the institutions established to safeguard the rule of law. Citizens expected police officers in going about their duties to be fair, transparent and accountable in executing duties on behalf of the State. That meant that chapter four of the Constitution should at every juncture be the guiding light when effecting arrest and detention of suspects alleged to have committed cognizable offences.
15. The key elements of constitutionality threshold of an offence when it came to arrests were;

1. the offence had to be materially connected to its objective and not to be arbitrary, unfair or based on irrational considerations,
2. the offence, even if rationally connected to the objective, should impair as little as possible the right or freedom in question; and
3. there had to be proportionality between the effects of the offence which were responsible for limiting the right or freedom and the objective which had been identified as of sufficient importance to warrant overriding of a constitutionally protected right.

16. One of the ingredients of the rule of law was certainty of law. The most focused deprivations of individual interest in life, liberty or property had to be accompanied by sufficient procedural safeguards that ensured certainty and regularity of law. That was a vision and a value recognized by Kenya’s Constitution and it was an important pillar of the rule of law. Enforcing the law and maintaining public order had to always be compatible with respect for the human person. Under article 73(a) and (b) of the Constitution that authority assigned to a State officer was a public trust. It was to be exercised in a manner that was consistent with the purposes and objects of the Constitution, demonstrated respect for the people, brought honour to the nation and dignity to the office, promoted public confidence in the integrity of the office and vested in the State office the responsibility to serve the people, rather than the power to rule them. That was the yardstick that police officers were meant to achieve in exercising their powers under the National Police Service Act and the Criminal Procedure Code. To arrest, detain or investigate had to be carried out within constitutionally permissible parameters.
17. Any system of law which kept in mind the constitutional provisions had to ask the fundamental question whether in order to fight crime it was 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 it was for a short period, had far reaching effect on his or her rights to human dignity. 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 was one of Kenya’s key pillars in the administration of criminal justice.  That principle applied to all criminal law litigation.
18. Reasonableness and rationality of the decision to arrest where deprivation of individual liberty of a person was concerned should be consistent with the Constitution and international standards in upholding the rights of the individual.  The rights of the petitioners to be released on bail, being given reasons for their arrest in the legal sense under section 182 of the Penal Code, right to communicate with counsel upon arrest were not adequately addressed by the respondents.
19. Administratively the officer in charge had the responsibility to make a final decision on the arrested persons. It was absurd that important human rights like the liberty of a person once taken away arbitrarily had to await the availability of a single officer to determine whether he or she should enjoy that right or not. There were no simple solutions to institutions but to enhance accountability and prevent an abuse of the administrative process the features of article 10 of the Constitution should be the key driving authority in the decision making process at the police stations.  It was clear that both under the Constitution and Kenya’s statutory framework, an individual right to liberty could not be just taken away without a just cause.
20. The 20^th petitioner, who was an advocate, was charged with a cognizable offence. It was expected that an advocate should be zealous in defending the rights of his clients. As such it was unlikely that while at the station, the 20^th petitioner was mollycoddling the respondents. It was ludicrous that the respondents would seek to paint a picture of the 20^th respondent as a drunk who was causing a raucous at a police station without offering an iota of evidence in support of such a claim. The arrest of the 20^th petitioner was occasioned by his spirited defence of his clients.
21.  In exercising statutory powers of arrest the respondents had to act reasonably and should not be oppressive or punitive under the guise that the petitioner was obstructing lawful execution of their duties. In light of the overall constitutional obligations cast upon members of the legal profession and in the circumstances of the instant petition, rules of police station protocol should not negate the realization of the right to legal representation to arrested persons. Only legal counsel had the knack to agitate the rights of accused persons by applying the law to the facts of the case, whether at the police station or courtroom setup.
22. Impairing the rights of accused persons made a mockery of the principles laid down in the Constitution. For a lawyer who had found himself at a police station for the sole purpose of representing his or her client, the arrest and detention was not an option. However, in the event he committed an offence within the precincts of the police station, the arrest and detention should be a measure of last resort. Given the circumstances of the Kenyan society where the poor, vulnerable, weak and illiterate presumably found themselves in breach of the law legal assistance at both pre-trial or during trial had to be provided to ensure that there was no failure of justice in the process.
23. The 20^th petitioner upon arrest was entitled to legal representation. It was in vain to say that the petitioner’s clash with the respondents would accord him a fair hearing. That objective was attainable by inquiring whether the 20^th petitioner wanted to exercise his right to be represented by counsel. The respondents failed the Constitution in failing to ensure observance and effective protection of article 49 of the Constitution. The arrest and detention of the petitioners was actuated without a reasonable basis and was thus unlawful.
24. In essence, due process, substantive justice and the exercise of jurisdiction were a function of precise legal and factual claims. However, precision was not coterminous with exactitude. Although precision had to remain a requirement as it was important, it demanded neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. The whole function of pleadings, hearings, submissions and judicial decision was to define issues in litigation and adjudication, and to demand exactitude ex ante was to miss the point.
25. The burden of proving violation or threat of violation was upon the petitioners. The petitioners had to patently express the manner in which the respondents had violated their rights. The pleadings and submissions of the petitioners sought redress for violation of their rights under articles 25, 27, 28, 29, 39, 40, 49, 50 and 51 of the Constitution.
26. The arrests of the petitioners were in contravention of article 29(1) of the Constitution which protected the petitioners from being deprived of their freedom without just cause. Similarly, the detention deprived the petitioners of their freedom of movement guaranteed under article 39(1) of the Constitution. Additionally, the actions of the police officers were discriminatory in nature against the 1^st to 19^th petitioners contrary to article 27(4) of the Constitution.
27. The 1^st to 19^th petitioners were held for about three hours in the back of a police vehicle. Given the size of the average police land cruiser, the conditions had to have been at the very least substantially uncomfortable and cruel. Sitting at the back of a police vehicle for such a long period of time while not knowing the reason for your arrest, being booked into a police station and thrown in the cells without being informed of the reason for your arrest and being denied an audience with an advocate constituted violation of the right to inherent human dignity, freedom from torture, and cruel, inhuman and degrading  treatment or punishment,  freedom and security of the person and equality and freedom from discrimination under articles 25(a), 27(1), 28 and 29 of the Constitution.
28. The respondents’ reason for arresting the 20^th petitioner was unconvincing. They did not put forth any evidence in support of their notion that the 20^th petitioner was drunk. That was a mere excuse to cover up for the misdeeds of the officers. By arresting the 20^th petitioner in the course of conducting his duties without any reasonable cause, the respondents not only violated his rights but also the rights of his clients to legal representation.
29. In the absence of an alternative explanation by the respondents, the petitioners’ rights under article 49 of the Constitution were violated on account of them not being informed of the reason for their arrest. The unlawful arrest of the 20^th petitioner as he had gone to the aid of his clients deprived them of their constitutional right to legal representation of their choice as guaranteed by article 49 (c).
30. The 20^th petitioner was granted a cash bail at the police station and subsequently charged at a subordinate court. Matters concerning bail and bond at the Subordinate Court were not within the purview of the instant Court. As such the 20^th petitioner ought to raise the said issue in the appropriate forum. Therefore, the petitioners ought not to have been detained in custody in the first place for the alleged offences. As such, their rights under article 49(2) of the Constitution were further violated.
31. The treatment accorded to the petitioners with effect from 9.00pm until their release the following day without charge was an emotional and psycho traumatic experience which would be a dark stain in their personal profile. The action by the respondents under section 182 of the Penal Code was offensive and arbitrary deserving both compensatory and exemplary damages.
32. The Court was not told why article 49(2) of the Constitution did not apply to the petitioners, either to release them immediately on surety recognizance or cash bail. There was no justification in law for them to spend a night at the police station. There was no mention of any complaint made by some member of the public or such other person at the time of arrest and subsequent detention at the police station. The arrest and detention of any suspect was generally considered an upfront or an infringement of the right to liberty and freedom of the person under article 29 of the Constitution, inherent right to human dignity in article 28 of the Constitution, right to privacy under article 31 of the Constitution and the right to equality and freedom from discrimination in article 27 of the Constitution. The burden of proof was on the respondents to justify reasonable cause which necessitated the arrest on any of the elements of the law expressly stated in section 182 of the Penal Code.
33. The rationale of restricting the 20^th petitioner from providing legal services to his clients in custody never met the minimum legal threshold. The conduct by the respondents betrayed the very values and principles of article 10 of the Constitution. The Court had to come out strongly against arbitrary and inequitable use of police power on innocent citizens. Sometimes loss of self-esteem and reputation associated with the aftermath of such conduct could not be compensated by way of damages. However, that was the approach the law took to punish wrong doers to serve as a preventive measure for future unlawful conduct and also to give fair compensation to the victims for the violation or infringement of their rights.
34. Where a petitioner was entitled to compensation for a violation of his constitutional rights by the State, such compensation ought to be both general and exemplary or punitive in nature. That was so because such an award was meant to vindicate the violation of the petitioners’ rights and deter future infringements. In light of the violations occasioned by the respondents on the petitioners’ rights, the petitioners were entitled to general exemplary damages in addition to a declaration on the violation of their constitutional rights.

Petition allowed

1. The respondents found jointly and severally liable for the infringement of the constitutional rights of the petitioners.
2. The actions of the police officers declared to have contravened the petitioner’s rights and freedoms under articles 25, 27, 28, 29, 39 and 49 of the Constitution.
3. The 1^st to 19^th petitioners awarded Ksh. 100,000/- general damages together a similar amount to cater for exemplary damages. The 20^th petitioner awarded a global sum of Ksh. 3 million for both general and aggravated damages.
4. The petition was also allowed in terms of the declarations in prayer no. (a), (b), (c), (e) and (f).
5. The quantum of damages to attract interest at court rates from the date of the judgment until payment in full.
6. Costs of the suit to be borne by the respondents.