REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CONSTITUTIONAL PETITION 18 OF 2018

MICHAEL KEBENEI......................................................................PETITIONER

VERSUS

THE INSPECTOR GENERAL OF POLICE.........................1^ST RESPONDENT

THE DIRECTOR OF CRIMINAL                                                                            

INVESTIGATIONS -                                                                                                 

KAPSABET POLICE DIVISION..........................................2^ND RESPONDENT

THE HONORABLE ATTORNEY GENERAL.....................3^RD RESPONDENT

BENJAMIN LULEI.................................................................4^TH RESPONDENT

JOHN KIPLAGAT BITOK.....................................................5^TH RESPONDENT

JUDGMENT

1. The petitioner filed a petition dated 10^th of November 2020 seeking the following orders;

a) A declaration that the actions of the respondents as enumerated in the petition were made in violation of articles 47, 48 and 52(1) of the Constitution because they were done without due regard to the requirement of fair administrative action, access to justice and the said respondents’ actions are therefore unlawful, unconstitutional, invalid and void ab initio.

b) That an order of certiorari be issued removing into this court and quashing the charge sheets and the entire proceedings against all the petitions in both the Principal Magistrates Court at Kapsabet in Criminal Cases No’s 4650 of 2018, Republic vs Michael Kebenei and CR No. 1004 of 2019, Republic vs Matthew Kipchirchir.

c) That a declaration be and is hereby issued that detaining the petitioners without justification and without informing him of the reasons, holding him beyond the period as authorized by the law, incommunicado and in inhuman and degrading conditions, threatening them with death and physical harm, allowing civilians to intimidate them while in detention were violations of the petitioner’s rights as protected under articles 28, 40, 45 and 52 of the constitution.

d) That an order for exemplary and punitive damages be and is hereby issued against the 7^th respondents jointly and severally, in their individual, personal and official capacities on account of violation of the petitioners’ fundamental freedoms and rights as enumerated in the petition.

2. The petitioner’s case is that on 12^th of November 2018 the respondents arrested the petitioner and held him at Kapsabet Police station. He was denied counsel, held incommunicado in cruel inhuman conditions until he was charged. He wasn’t informed of  reasons of arrest. On 5^th of March 2019 when he went to testify as a witness in the case of assault against the 7^th respondent he was arrested again and this was calculated to prevent him from testifying.

3. The petition is based on Articles 10, 19, 21, 29, 27, 28, 29,40 47, 48, 49, 50, 51, 156 and 244 of the Constitution.   The petitioner claims his rights under the abovementioned provisions were violated by the respondents.

The Response

4. The respondents are opposed to the petition. The 4^th respondent filed a replying affidavit on 4^th March 2020. The 4^th and 5^th respondents also filed submissions on 20^th September 2020. The 4^th respondent contends that in 2018 he learnt of a succession matter that had proceeded in Kapsabet Senior Principal Magistrates Court in which the petitioner had fraudulently presented a forged letter to the court purported to have been written by the 4^th respondent. Upon investigations the charge of forgery was preferred against the petitioner and he was charged in Kapsabet Criminal Case No. 4650 of 2018 which is still pending. The 4^th respondent states that the affidavit in support of the petition is full of falsehoods and intended to hoodwink the court. Upon the determination of the case no. 4560 of 2018 the innocence or guilt of the petitioner will be determined.

5. The 5^th respondent contended that on 8^th June 2005 and 5^th January 2010 he entered into separate sale agreements with the late Kiptagun Mugun for two portions of land. However, the late Kiptagun Mugun died intestate before the transfer of the said portions could be granted. He filed citation cause no. 123 of 2015 in the senior principal magistrates cause no. 123 of 2015 seeking the deceased brothers to take out letters of administration of the deceased only to notice the petitioner had sought to take out letters of administration. The petitioner forged the chief’s letter claiming to be the only son and heir to the estate of the deceased hence the criminal proceedings which are still pending.  The affidavit supporting the petition herein dated 4^th August 2015 denying being a witness in the said sale agreement is false and a mere forgery.

6. The 1^st and 2^nd respondents who under sections 29 and 36 of the criminal procedure code can arrest a person with a probable cause and therefore based on the information provided by the 4^th and 5^th Respondents arrested the petitioner herein. By lodging a complaint to the 1^st and 2^nd respondents officers the 4^th and 5^th respondents, acted in the interests of justice. They cited Miranda vs Arizona, 384 US 436 (1966) in support of their submissions. The petitioner’s claim the 4^th and 5^th Respondents colluded in his arrests without legal justification has not been proved and the alleged unlawful arrest and detention stated the petition are not true. The arrest of the petitioner was made based on proper and reasonable basis. The petition is an abuse of the court process and should be dismissed.

Determination

7. Upon reading the pleadings and submissions by all the parties herein, I have identified the following issues for determination;

a) Whether the petition meets the threshold for a constitutional petition

b)  Whether the prayers sought should be granted

Whether the petition meets the threshold for a constitutional petition

8. The principle established for the specificity of constitutional petitions was set down in Anarita Karimi Njeru vs The Republic (1979) eKLR where it was held

‘’We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.’’

9. In the case of Christian Juma Wabwire vs Attorney General [2019] eKLR, the Judge relied on the decision in Lt. Col Peter Ngari Kagume and 7 Others vs AG, Constitutional Application No. 128 of 2006 where it was held that: -

“It is incumbent upon the Petitioners to avail tangible evidence of violation of their rights and freedoms. The allegations of violations could be true but the court is enjoined by law to go by the evidence on record. The Petitioners’ allegations ought to have been supported by further tangible evidence such as medical records, witnesses…… the court is deal to speculation and imaginations and must be guided by evidence of probative value. When the court is faced by a scenario where one side alleges and the rival side disputes and denies, the one alleging assumes the burden to prove the allegation… However, mere allegation of incarceration without providing evidence of the same does not at all assist the court. It was incumbent upon the Petitioners to provide evidence of long incarceration beyond the allowed period and not to be presumptuous that the court knows what happened…."

10. The petitioner claimed that his rights under articles 47, 48 and 51 of the Constitution were violated by the Respondents.

11. Article 47 (1) of the Constitution provides for the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 48 provides for access to justice for all persons. Article 51 (1) of the Constitution provides that a person who is detained retains all the rights and freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.

12. There is no evidence tabled by the petitioner that shows that his arrest and arraignment breached articles 47, 48 and 51 of the Constitution. He claimed to have been held incommunicado and assaulted but he did not provide any proof.

13. Section 107 of the Evidence Act legislates on the burden of proof as follows: -

107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2)   When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

14. Section 109 of the Evidence Act provides as follows on the proof of a particular fact: -

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

15. Article 29 of the Constitution provides that every person has the right to freedom and security of the person, which includes the right not to be—

(a)   deprived of freedom arbitrarily or without just cause;

(b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58;

(c)    subjected to any form of violence from either public or private sources;

(d)   subjected to torture in any manner, whether physical or psychological;

(e)  subjected to corporal punishment; or

(f)  treated or punished in a cruel, inhuman or degrading manner.

16. The petitioner has not provided any evidence that the respondents or their agents violated his rights under article 29.

17. Article 50 (1) and (2) of the Constitution provides that every accused person has the right to a fair hearing.  The petitioner has not shown how the rights under Article 50 were breached. The petitioner was arrested based on the forensic report which gave the police probable cause to arrest him. The respondents have clearly set out the circumstances that led to the arrest of the petitioner. Their actions were well within their mandate.

18. Articles 28, 29, 40, 43 and 45 give provisions on Human Dignity, Freedom and security of the person, Protection of right to property, Economic and social rights and Family respectively. The petitioner has not tabled any evidence that these rights were breached by the respondents.

19. The Petitioner has failed to demonstrate how the criminal proceedings in the Principal Magistrates’ Court at Kapsabet in Criminal Case No. 4650 of 2018 and Kapsabet Criminal Case No. 1004 are in violation of his constitutional rights. 

20. It is the position taken by this court that the petitioner has not met the threshold set out in the Anarita Karimi Njeru case (supra) especially with regard to the manner in which the Constitutional rights are alleged to be infringed.

Whether the prayers sought should be granted

21. Given that the petition has failed to meet the threshold for a constitutional petition, or provide evidence that shows the extent of the alleged infringements, it follows that the prayers sought cannot be granted. The petition is dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 8TH DAY OF MARCH  2022.

E.K. OGOLA

JUDGE