Issue No. (ii) Whether the petitioner’s constitutional rights have been violated.
18.From the material before this court it is a fact that the petitioner was convicted of the offence of creating disturbance C/S 95 (1) of the Penal Code and sentenced to six (6) months imprisonment in the year 2003. In his search for a job he has been required to have a police clearance certificate. He thus applied for the same on 19th March 2019 and another one on 9th December 2019.
19.The police accordingly acted and issued him with the said certificates as per the request. In the certificates has been indicated that he was convicted of the offence of creating disturbance. It’s this indication that is the basis of this petition. The petitioner claims that the said indication of the conviction has made it difficult for him to get a job for purposes of catering for his family.
20.The question begging an answer is disclosure of any wrong that the 1st respondent committed by releasing the required information. The said information is under the custody of the 1st respondent by virtue of section 55 of the National Police Service Act. The Petitioner has not demonstrated how the respondents have violated the provisions of the Constitution and the many provisions of the Data Protection Act cited, by him.
21.By virtue of this petition the petitioner wants this court to order for his record of conviction to be expunged so that he can have a clear clearance certificate. He claims that his attempts to have this done by the 1st respondent has fallen on deaf ears as the 1st respondent claims that he has to wait for 20 years.
22.The Attorney General at paragraph 23 of the respondents submissions states:
23.Infact it’s this submission by the Attorney General that will assist Kenyans. I have perused the key criminal statues in Kenya namely; The Penal Code Cap 63, the Criminal Procedure Code Cap 75 and the National Police Service Act No.11A of 2011 and note that there is no legal provision or basis for expungement of criminal records in Kenya.
24.It is therefore not clear under what provision of the law the 1st respondent exercises the discretion, in expunging a conviction from ones record. Does this discretion apply to both demeanors and felonies? Is it fair to maintain the alleged twenty (20) year period for a conviction whose maximum sentence is six (6) months as that of the petitioner?
25.The above unquestionably creates a lacuna in law in that there is no regulatory framework to guide and stipulate the conditions one should satisfy before their criminal record is expunged. Further the law would stipulate the scope of such a mandate to safeguard against its abuse and create certainty and uniformity in the manner the procedure is applied in such applications.
26.Undoubtedly the instant dispute is one where Courts are called upon to address the gap in law by creating jurisprudence in a bid to deliver justice. I find guidance in the case of Mugambi Imanyara & another vs Attorney General & 5 others  eKLR where it was held that:
27.A comparative analysis of other jurisdictions laws on the topic divulges a clear procedure which is lacking in our jurisdiction. I would like to specifically highlight the procedure set out in the South African criminal law in this examination.
28.Sections 271A - E of the Criminal Procedure Act 51 of 1977exclusively provide for the expungement of criminal records in South Africa as follows:i.Section 271A - Certain convictions fall away as previous convictions after expiration of 10 years.ii.Section 271B - Expungement of certain criminal records.iii.Section 271C - Expungement of certain criminal records under legislation enacted before the Constitution of the Republic of South Africa, 1993, took effect.iv.Section 271D - Expungement of certain criminal records by Criminal Record Centre.v.Section 271DA Revoking of certificate of expungement erroneously issued.vi.Section 271 E Regulations.
29.In a nutshell expungement of a criminal record in the South African Law is a process by which a criminal record of a convicted offender is removed from the criminal record database of the Criminal Record Centre of the South African Police Service. For one to be eligible they must satisfy the following criteria:i.A period of 10 years has passed after the date of the conviction for the offence.ii.One has not been convicted and sentenced to a period of imprisonment without the option of a fine during those 10 years.iii.The sentence was corporal punishment.iv.The sentence was postponed or one was discharged.v.The sentence was a fine not exceeding R20 000.vi.The sentence was imprisonment with the option to pay a fine (not more than R20 000) instead of serving the period of imprisonment.vii.The sentence of imprisonment was suspended wholly.viii.The sentence was correctional supervision in terms of section 276(1)(h) of the Act.ix.The sentence was imprisonment in terms of Section 276(1)(i) of the Act.x.The sentence was periodical imprisonment in terms of Section 276(1)(c) of the Act.xi.That there is proof one’s name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.
30.The Act in the same manner also provides for the classes of persons whose criminal records cannot be expunged. This grounds are that: a period of 10 years has not lapsed after the date of the conviction; the person was sentenced to direct imprisonment; where the fine imposed was more than R20 000 where the imprisonment was not suspended and there was no option of a fine during the 10 year period; his or her name is still included in the National Register for Sex Offenders or the National Child Protection Register.
31.In view of the provisions for expungement of criminal records, Section 271E of the said Act provides as follows:The Minister(a)must make regulations regarding-(i)the form on which a person's written application for the expungement of his or her criminal record must be made, as provided for in section 271B (1) (a) and section 271C (2) (a) and (b);(ii)the certificate of expungement to be issued by the Director-General: Justice and Constitutional Development or the Minister, as provided for in section 271B (2) and section 271C (3) and (5) (b); and(iii)the manner in which the Director-General must submit certificates of expungement that have been issued, to the head of the Criminal Record Centre of the South African Police Service, as provided for in section 271B (3) and section 271C (4); and(b)may make regulations regarding any other matter which is necessary or expedient in order to achieve the objects of sections 271B, 271C and 271D.
32.I have set out the South African procedure for expungement of criminal records to demonstrate the glaring gaps in our law with reference to this subject. There is therefore a very urgent need for the Legislature to enact legal provisions to address this lacuna in the law relating to expungement of criminal records in the interest of justice. Let there be a distinction between misdemeanors and felonies as related to the period the records should be kept.
33.From the evidence on record and above findings it is clear that though the petitioner may not be successful in getting the orders he sought he has brought up through this petition a very important issue for consideration by the Hon. Attorney General and the Cabinet Secretary for the Ministry of Interior and National Administration and Parliament. It is not a loss to him because it is now twenty (20) years since his conviction in the year 2003. He is at liberty to apply to the 1st respondent for the expungement of this conviction from the record, which should not be an issue.
34.The upshot is that the petition partially succeeds in view of the above orders. Counsel for the respondent should bring to the attention of the Attorney General, Cabinet Secretary for the Ministry of Interior & National Administration and Parliament the contents of this Judgment. There shall be no order as to costs.Orders accordingly.