Njaria v Attorney General & 3 others (Constitutional Petition 13 of 2022)  KEELC 16126 (KLR) (7 March 2023) (Judgment)
Neutral citation:  KEELC 16126 (KLR)
Republic of Kenya
Constitutional Petition 13 of 2022
JA Mogeni, J
March 7, 2023
IN THE MATTER OF ARTICLES 19, 20, 21, 23, 25, 27, 28, 29, 39, 40, 47, 49 & 50 (OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF INTENDED CRIMINAL PROSECUTION OF SAMUEL MAINA NJARIA
Samuel Maina Njaria
The Hon. Attorney General
The Inspector General of Police
The Director of Public Prosecution
The Director of Criminal Investigations
1.The Petition for hearing and determination before me is dated July 26, 2022 and filed on 5/08/2022. The Petitioner prayed for the following orders and declarations in the petition: -i.A declaration that the intended institution maintenance and prosecution of the Petitioner in Makadara Law Courts for an offence of malicious damage to property is an abuse of the criminal justice system, oppressive, malicious, abuse of the process of the Court and a contravention of the Petitioner’s Constitutional rights to freedom and security of the person and the right to secure protection of law.ii.A declaration that the Respondents are in breach of the constitution specifically articles 27, 28, 29, 47, 48, 50 and 73.iii.A Declaration that the Respondents have violated the Petitioner's constitutional rights guaranteed under articles 27, 28, 47, 48 and 50.iv.General damages for violation of the Petitioner's constitutional rights.v.A declaration that the 1st, 2nd and 4th Respondents have abdicated their constitutional and legal roles and are therefore escapists.vi.Any other relief the court may deem fit to grant, andvii.An order for payment of costs of this petition by the Respondents.
The Petitioner’s Case.
2.The Petitioner’s case is set out in the petition, the application dated July 26, 2022, supporting affidavit and the annexures thereof, and the submissions filed in court. Broadly, the Petitioner asserts that is a joint owner of LR No Nairobi Block 118/1192 with one Catherine Wangui Mwangi having purchased the same from Drumvale Farmers’ Co-operative Society in 2000 where the Petitioner and his entire family have been living continuously on the land since 2000 to date and have developed it.
3.The Petitioner contends that there has been long standing dispute regarding boundaries demarcation between the Petitioner and Kamulu Police Station regarding LR No - Nairobi Block 118/1192 a subject matter of Nairobi ELC No 956 of 2016 which is pending for hearing and determination.
4.The Petitioner contends that on or about the June 29, 2022 at 12.00 p.m. Police Officers from Kamulu Police Station arrested and took the Petitioner to custody with intent to charge him with an offence of malicious damage to property the subject matter of Nairobi ELC No 956 of 2016. The officers at Kamulu Police Station have dug trenches directing sceptic tank waste to the suit property causing massive loss of land, damage of land and grave prejudice to the Petitioner and indeed the Inspector General of Police and the Director of public Prosecution are in violation of the fundamental rights and freedoms of the Petitioner as guaranteed by the Constitution of Kenya.
5.It is the Petitioner’s case that the Director of Public Prosecution and the Inspector General of Police are in gross abuse of justice process and have abused and continue to abuse the Petitioners right to protection and equal benefit of the law as enshrined under Article 27 of the Constitution of Kenya.
6.The Petition is opposed. The Respondents entered appearance on 8/09/2022 and filed a Replying Affidavit dated 2/02/2023 despite being served on August 16, 2022.
7.The Respondent in response to the Petitioner’s Petition filed a Replying Affidavit sworn by David Musila on 2/02/2023.
8.In the said Replying Affidavit, an Investigation officer stationed at Kamulu Police Station contended that a criminal case no Kamulu case file C/128/103/2022 for the offence of malicious damage to property was reported in which the Petitioner is the accused. That this it case of malicious damage to property contrary to section 339 (1) and sabotage contrary to section 343 (a) (b) of the penal code.
9.He contends that on the material date of May 13, 2022 at around 1700hrs, the Petitioner whose property neighbors Kamulu Police Station while in the company of another individual purported to be a plumber trespassed into Kamulu Police station's compound and interfered with the station's sewerage system from the reservoir Kentank plastic tank where they blocked the outlet piping system and connected it to the overflow outlet piping system. That thereafter, the petitioner directed the pipe to spill the sewerage waste towards another neighbor's property by the name Watson Kirori Wahiu where the waste ended up into his borehole and also at his compound at large thereby exposing a danger of eruption of water borne diseases to his family.
10.Further, the Respondents averred that on May 14, 2022, the neighbor one Watson Kirori Wahiu made a formal report at the station where the scene was visited by the OCS Kamulu CI Occurrence book OB No 18/14/05/2022 at 1020hrs and investigations commenced. However, the Court notes that this report has not be adduced before this Court.
11.It is the Respondents’ case that on May 29, 2022 at around 1520hrs, the station sewerage plastic tank fell down and blasted into pieces after its metal stand collapsed due to the weight of the tank filled with sewer water after the petitioner blocked its outlet. Thereafter, the scene was visited by the scenes of crime personnel and necessary action taken to that effect. That the value of the damaged Kentank of 5000 litres is estimated to Kshs 35.000/-while the cost of the damaged metal stand is estimated to Kshs 97,000/- all amounting to Kshs 132.000/-.
12.The Court gave directions on the filing of written submissions on October 31, 2022. Counsel for the Petitioner and counsel for the 3rd Respondent were the only ones who appeared. Petitioner confirmed having filed its submissions dated 4/10/2022 and that they served the respondents. The 3rd Respondent’s advocates confirmed that he was served with the Petitioner’s submissions and informed the Court that he also served his submissions, but they had not filed through CTS. The Court notes that the 3rd Respondent’s submissions are not on the Court file either. The 3rd Respondent’s advocate requested for time to submits the copies. The Court granted the Respondents 14 days to file their submissions.
13.By the time of writing this Judgment, the Respondents had not filed their submissions. The Court has therefore only considered the Petitioner’s submissions dated 4/10/2022.
Analysis and Determination
14.I have very carefully considered the Petition, the Respondent’s Relying Affidavits, the Petitioner’s submissions. I have also considered the relevant constitutional and statutory frameworks. Similarly, I have considered the relevant jurisprudence on the key issues in the petition. I postulate that the issues for determination are:a.Whether the Respondents’ Replying Affidavit dated 2/02/2023 can be allowed.b.Whether the Petition raises any constitutional issues?c.What reliefs is the Petitioner entitled to in this Petition?
Whether the Respondents’ Replying Affidavit dated 2/02/2023 can be allowed.
15.The Court is cognizant of the fact that the Respondents entered appearance on 8/09/2022 after being duly served on August 16, 2022 as evidenced in the Petitioner’s return of service dated August 22, 2022. The Respondents further filed their Replying Affidavit dated 2/02/2023 on 6/02/2023. That is 151 days after entering appearance. The Respondents did not provide any explanation as to why it took them that long to file their response to the Petition.
16.I ought to expunge the Replying affidavit dated 2/02/2023 as this court does not condone the delayed filing of the Replying Affidavit. However, I am conscious of the fact that the Court must do whatever is necessary to ensure that the interest of justice is met. I seek refuge in the Court of Appeal majority decision in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 6 Others  eKLR where the court observed thus:
17.Upon weighing the circumstances of this case, I consider it prudent to allow the Replying Affidavit in the interest of justice and further to avert piecemeal litigation. I deem it imperative to state that the Court must allow all information that would be relevant to ensure the ends of justice are met.
Whether the petition raises any constitutional issues?
18.On whether the Petition raises any constitutional violations, the Petitioner herein contends that the legal basis of the Petition is as follows:1.That Article 1 (1) of the Constitution of Kenya provides that all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with the Constitution.2.That Article 2 of provides for the supremacy of the Constitution and binds all state organs.3.That further Article 3 of the constitution provides that every person has an obligation to respect, uphold and defend the Constitution.4.That Article 10 (2) (d) of the Constitution of Kenya, 2010 provides for national values and principles of governance to include, among others good governance, integrity, transparency, and accountability.5.That Article 21 of the Constitution of Kenya, 2010 provides that;- (1) It is a fundamental duty of the State and every State organ to observe, respect, protect, promote, and fulfill the rights and fundamental freedoms in the Bill of Rights.6.That Article 23(1) of the Constitution of Kenya, 2010 provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.7.That Article 27 of the Constitution guarantees inherent dignity and the right to have that dignity respected and protected and not be dragged through mud in a criminal case in a game of settling scores and advancing personal vendettas where the petitioner has no role but is a victim.8.That Article 47(1) of the Constitution of Kenya, 2010 provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.9.That further, the said Article 73 of the Constitution requires public officers should be objective and impartial in decision making, and in ensure that decisions are not influenced by nepotism, favoritism, other improper motives, or corrupt practices.10.That under Article 22 and 258 of the Constitution, every person has a right to institute court proceedings claiming that the constitution has been contravened or is threatened with contravention.11.That Article 258 of the Constitution provides:1)Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by -a.a person acting on behalf of another person who cannot act in their own name.b.a person acting as a member of, or in the interest of, a group or class of persons.c.a person acting in the public interest; ord.an association acting in the interest of one or more of its members.12.That the state is the guarantor of the rights and freedoms of every citizen as provided for in the constitution.
19.The Petitioner further contends that the contraventions by the Respondents are as follows:i.Arresting the Petitioner on fabricated charges (in violation of Article 47, 48 and 50 of the Constitution).ii.Dragging the Petitioner through a shambolic criminal case (in violation of 47, 48 and 50 of the Constitution).iii.Making the Petitioner a sacrificial lamb and victim in offences which the Petitioner is not the real perpetrator and where the real perpetrators are well known to the police all along if not the police. (in violation of Article 27, 47, 48 and 50 of the Constitution).iv.Depriving the Petitioner of his freedom under article 28 of the Constitution of Kenya by depriving him of liberty arbitrarily and without just cause, by causing his arrests, detention, arraignment in court for crimes he did not commit and has no connection with other than the crimes having happened in an area in which he is the member for county assembly.v.Absconding of duties and responsibilities by the 1st, 2nd and 4th Respondents, actions which are against the spirit and letter of the Constitution and are Contrary to chapter six of the Constitution.
20.In general, the Petitioner’s alleges that his rights and especially the right to equal protection and benefit from the law, freedom from discrimination under article 27, right to inherent dignity under article 28, freedom and security of person under Article 29, right to administrative action under article 47, and access to justice under article 48 have been violated through the wrongful acts of the Respondents.
21.To begin with, I am guided by the sentiments of the Court in the case of Anarita Karimi Njeru v R [1976 - 80] KLR 1272 which was also affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & others  eKLR, where the Court held that a party seeking redress by way of Constitutional Petition must set out with a reasonable degree of precision the constitutional provisions which he alleges to have been infringed and the manner of the alleged infringement.
22.The Petitioner’s Petition is premised on Articles 19, 20, 21, 23, 27, 28 29, 39, 40, 47, 49 and 50 of the Constitution of Kenya as indicated on the face of the Petition. The Petitioner also relied on Articles 1 (1), 2, 3, 10 (2), 73 and 258 of the Constitution of Kenya. Some of the Articles relied upon are also set out in the body of the Petition.
23.The principle was emphasized by the Court of Appeal in Mumo Matemo vs. Trusted Society of Human Rights Alliance (2014) eKLR, where it stated that:-
24.A glance of the present Petition demonstrates that the Petitioner alleges that the Respondents have mainly violated Article 27, 28, 29, 47, 48, 50 and 73 of the Constitution of Kenya.
Right to equal treatment
25.Turning to the issue of whether or not the petitioner’s rights to equality and privacy under Article 27 of the Constitution was violated, the petitioner’s case was that that he was made a sacrificial lamb and victim in offences which the Petitioner is not the real perpetrator and where the real perpetrators are well known to the police all along if not the police. Further, that Article 27 of the Constitution guarantees inherent dignity and the right to have that dignity respected and protected and not be dragged through mud in a criminal case in a game of settling scores and advancing personal vendettas where the petitioner has no role but is a victim.
26.Article 27 of the Constitution embodies the principle of equality and non- discrimination thus:
27.Needless to say, equality includes the full and equal enjoyment of all rights and fundamental freedom. The import of Article 27 is that human rights and fundamental freedom are guaranteed to all persons by virtue of being human and must be enjoyed without limitation. That is to say that the rights and fundamental freedoms that are guaranteed by the Constitutions must be enjoyed by all human beings in equal measure and to the fullest extent.
28.The constitution prohibits all forms of discrimination and grounds of discrimination are not exhaustive. The Petitioner claims that he was made a sacrificial lamb and victim in offences which the Petitioner is not the real perpetrator and that he has been dragged through mud in a criminal case in a game of settling scores and advancing personal vendettas where the petitioner has no role but is a victim.
29.With all due respect to the petitioner’s argument, my humble view is that there was no proof that the action taken against the petitioner herein was discriminatory as he did not show that he was subjected to different treatment from others on any of the grounds stated in Article 27(1) of the Constitution. In the case of John Harun Mwau v Independent Electoral and Boundaries Commission & Another  eKLR, the Court stated referring to Article 27 of the Constitution:
30.In the instant case, I reiterate that the petitioner’s claim that he was not accorded equal treatment before the law was not proved as it was not shown that a sacrificial lamb and victim and that the institution of the criminal case was a game of settling scores and advancing personal vendettas.
Right to human dignity
31.Turning to the issue of whether or not the petitioner’s rights to human under Article 28 of the Constitution was violated, the Petitioners case was that in contravention of article 28 of the Constitution of Kenya, the Petitioner was deprived of his freedom and liberty arbitrarily and without just cause, by causing his arrests, detention, arraignment in court for crimes he did not commit and has no connection with other than the crimes having happened in an area in which he is the member for county assembly .
32.In regard to the claim that the Petitioner’s right to human dignity was violated by the respondents’ actions, I rely on the statement in Dawood v Minister of Home Affairs,  (3) SA 936 (CC), as cited at paragraph 132 of the Supreme Court case of Martin Wanderi & 106 others v Engineers Registration Board & 10 others  eKLR, that:
33.The Supreme Court interpreted the cited paragraph to mean that “the right to dignity [is] at the core of a violation of other fundamental rights and freedoms.” In other words, where it is established that a right under the Constitution has been infringed upon, then the infringement of the right to human dignity under Article 28 is highly likely to have also occurred. In this case, the Petitioner has not adduced sufficient evidence to establish that his right to human dignity was also violated. He has not demonstrated how the police officers from Kamulu Police Station violated his right to dignity when he was arrested on or about June 29, 2022.
Right to freedom and security of the person
34.Article 29 guarantees the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause, to be free from all forms of violence from either public or private sources, and the right not to be treated or punished in a cruel, inhuman, or degrading way. This Constitution recognizes the right of everyone who is arrested for allegedly committing an offence not to be compelled to make any confession or admission that could be used against him.
35.On the rights to freedom and security of the person under Article 29 of the Constitution, I find that the Petitioner has not precisely demonstrated how this right was affected by actions of the Respondents. In support of this finding I reiterate the dictum in Anarita Karimi Njeru (supra) that:
36.I find and hold that the Petitioner has not precisely pleaded his case on the infringement of his rights under Article 29 of the Constitution and I cannot therefore find in his favour in respect of the alleged violation of this constitutional right.
Right to Fair Administrative Action, access to justice and fair hearing
37.Turning to the issue of whether or not the petitioner’s rights to fair administrative action, access to justice and fair hearing under Articles 47, 48 and 50 of the Constitution was violated, the Petitioners case was that his arrest on fabricated charges and dragging him through a shambolic criminal case was in violation of Article 47, 48 and 50 of the the Constitution. Further, that he was made a sacrificial lamb and victim in offences which the Petitioner is not the real perpetrator and where the real perpetrators are well known to the police all along if not the police.
38.Article 47 of the Constitution provides for the right to fair administrative action to which everybody is entitled to when one’s right or fundamental freedom has been or is likely to be adversely affected by such action. In such a case he or she is supposed to be given a fair hearing. This upholds the principles of the administrative action, which is supposed to be expeditious, efficient, lawful, reasonable, and procedurally fair.
39.The parent law that now governs how when a government agency wishes to take steps in decisions such as the ones relevant to acquisition of land by the state is the Fair Administrative Act of 2015. Section 4 (4) of the Act clarifies that every person must be accorded fair administrative action.
40.The Petitioner has not established how his right under Article 47 of the Constitution were violated.
41.Article 48 of the Constitution provides that: “the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.”
42.The Petitioner is already in Court.
43.The Petitioner has not shown how its access to justice has been hindered.
44.Article 50 of the Constitution provides for a fair hearing. The Petitioner has moved the Court to dispense with the Petition through written submissions. The Petitioner and the Respondents were given directions on filing of submissions. In terms of the alleged Criminal case, no evidence has been proffered on the progress of the same. However, the Petitioner has claimed that he has been arraigned in court and dragged through a shambolic criminal case. Therefore, there is no indication that the Petitioner’s rights to fair hearing having been violated. As I have found that the Constitutional rights of the Petitioner were not violated.
45.The gist of the Petition is that the Petitioner claimed that the police officers attached to Kamulu Police Station have dug trenches directing septic waste to their property. He annexed to the supporting affidavit photographs in an attempt to demonstrate this.
46.It is the finding hereof, that the Petitioner has failed to discharge his burden of proof as required under Section 107(1) of the Evidence Act, which provides that:
47.I opine that these photographs are not sufficient evidence. Without further elaboration of the photos by the Petitioner on matters such as the exact location where the photographs were taken, the developments being depicted in the photographs and the effects of those developments, the Court cannot determine any of the threats to the environment as claimed or if the threat is against the petitioner. It is not in dispute that the petitioner’s property is neighboring the one for Kamulu Police Station. It is not clear whether the police officers attached to Kamulu police stations are the ones that dug the trenches. It is also not clear where the source of the water/septic waste is from. Lastly, the petitioner has not proffered evidence that he has been wrongly charged in the criminal case, if any. He only adduced a cash bail receipt which only demonstrates that the petitioner was arrested as he alleges.
48.Therefore, the Petitioner’s right to a fair administrative action and hearing Article 47, 48 and 50 of the Constitution does not arise since the Petitioner has failed to demonstrate the same. It is the finding of this Court that the Petitioner’s rights under the Constitution cannot arise as a result of the Petitioner’s willful disobedience of the law. The Petitioner’s rights can only be infringed if the Petitioner proves that his arrest was based on fabricated charges and that he is being dragged through a shambolic criminal case and further, that he was made a sacrificial lamb and victim. He has failed to demonstrate the same by not providing evidence proving that he has been wrongly charged.
Responsibilities of leadership (chapter six of the Constitution)
49.Turning to the issue of whether or not the Respondents were in violation of chapter six of the constitution of Kenya in particular, in violation of Article 73 of the Constitution, the Petitioners case was that Article 73 of the Constitution requires public officers should be objective and impartial in decision making, and in ensure that decisions are not influenced by nepotism, favoritism, other improper motives, or corrupt practices.
50.This Court notes that the Respondents’ contended that it was a neighbor who reported malicious damage. That a criminal case no. Kamulu case file C/128/103/2022 for the offence of malicious damage to property was reported in which the Petitioner is the accused. The Petitioner has not disputed that a neighbor filed a case for malicious damage that led to his arrest. He even produced a receipt no 1709701 for cash bail of Kshs 10,000.00. I note that the Respondents allude to a formal report made on May 14, 2022 but they failed to adduce the same before this Court. That they visited the scene and the same was recorded under Occurrence book OB No 18/14/05/2022 at 1020hrs and investigations commenced. Evidence before me shows that the Principal Prosecution counsel wrote a letter dated June 23, 2022 to the Director of Public Prosecution wherein they provided that there is sufficient evidence to sustain the charge of malicious damage. This confirms that a case against the Petitioner was reported at the police station. I note that the petitioner was arrested on June 29, 2022. The parties herein allude to an ongoing criminal case, and whereas it is true that every party has a right to be heard, the Court finds that the petitioner hasn't demonstrated how the arrest and criminal case against the Petitioner have violated his rights. The Court does not see how the Respondents’ have violated the Petitioner’s rights under this head. I do not see how the Police officers attached to Kamulu Police Station failed to be objective and impartial in decision making, and in ensure that decisions are not influenced by nepotism, favoritism, other improper motives, or corrupt practices. The Petitioner has failed to demonstrate the same.
51.I have had an opportunity to look at the Petition and indeed it is clear to me that apart from citing the omnibus provisions of the Constitution, the Petition has provided some particulars of the alleged complaints and the manner of the alleged infringement as demonstrated above. It is now an established principle of law as enunciated in the above-mentioned cases, that anyone who wishes the Court to grant a relief for violation of a right or fundamental freedom, must plead in a precise manner the constitutional provisions said to have been violated or infringed, the manner of infringement and the jurisdictional basis for it.
52.I find from a cursory look at the Petition and supporting affidavit as well as the manner of pleading therein, there is some semblance of a constitutional petition pleading breach of known constitutional provisions or violation of and or infringement of rights and fundamental freedoms. Notwithstanding the inclusion of unnecessary provisions in the Articles of the Constitution, the instant Petition has not demonstrated violations of Articles 27, 28, 29, 47, 48, 50 and 73 of the Constitution. For the foregoing reasons this court is of the opinion that the petition before it has not met the threshold required of a constitutional petition.
What reliefs is the Petitioner entitled to in this Petition?
53.The question that remains to be answered is whether the Petitioner is entitled to all or any of the reliefs sought. The Petitioner submits that the Kenya Police should be restrained from arresting, detaining in custody the Petitioner herein in respect of the alleged offence of trespass and malicious damage to property and indeed the criminal case must be stayed to protect the authority of this Honourable Court, the integrity of this Court and the Constitutional rights of the Petitioner.
54.The Petitioner has prayed for various declaratory orders as well as general damages for violation of the Petitioner’s constitutional rights and costs. The Respondents on their part barely opposed the Petition. They did not file any submissions in opposition either.
55.In conclusion, I find that the Petitioner has not pleaded with precision the alleged violation of his rights under Articles 27, 28, 29, 47, 48, 50 and 73 of the Constitution. The Petitioner has not met the threshold to warrant granting of the orders sought and therefore the petition ought to be dismissed. As for the costs of this suit, it is trite that costs should follow the event. The Petition has not succeeded but also the Respondents barely participated in this suit. I believe this is a proper case for the Court to exercise its discretion and order that each party bears its own costs.
56.In view of my conclusions herein above, I find and hold that the Petition herein dated July 26, 2022 before this Court lacks merit and the same is hereby dismissed. Each party to bear their own costs.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 7TH DAY OF MARCH 2023…………MOGENI JJUDGEIn the Virtual Presence of:Ms. Njuguna for the 1st, 2nd and 4th RespondentsMr Achoki for 3rd RespondentsNo appearance for the 3rd RespondentMs. Caroline Sagina : Court Assistant...…………MOGENI JJUDGE