I. Whether this court has jurisdiction to hear and determine this petition as framed and/or if the appellants claim is time barred and brought to defeat time limitation imposed under Public Authorities Limitation Act, Cap 39 laws of Kenya.
46.There is no doubt that Article 22(1) allows every person a right to institute court proceedings claiming that a right or fundamental freedom in the bill of rights has been denied, violated or infringed or is threatened. Further Article 23(1) and (3) grants exclusive jurisdiction to the high court 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 and where appropriate may grant appropriate relief, including; -a.A declaration of rights;b.An injunction;c.A conservatory order;d.A declaration of invalidity of any law that denies, violates, infringes or threatens a right or fundamental freedom in the bill of rights and is not justified under Article 24;e.An order for compensation; andf.An order for judicial review.
47.It was the 1st and 2nd respondents position that this petition had been brought in bad faith and that the petitioner was not eligible for the orders sought due to the fact that this petition had been brought to defeat the time limitation of instituting a suit for malicious prosecution as against the Respondents under the Public Authorities Limitation Act, Cap 39, which provided a window of twelve (12) months from the date of the alleged violation or termination of suit. The petitioner herein is alleged to have filed this petition after a delay of over three (3) years and the said delay was not explained and the petition filed as an afterthought.
48..As to whether the instant petition is time barred, the question of limitation of time with regard to allegations of breach of human rights and fundamental freedoms has in many cases been raised by the state and in the case of Joan Akinyi Kaba Sellah and 2 others vs Attorney General, Petition No. 41 of 2014, the learned judge observed interalia that in a line of cases such as Dominic Arony Amollo vs Attorney General, Nairobi High Court Misc. Civil Case No. 1184 of 2003 (OS) 2010 eKLR, Otieno Mak’ Onyango vs Attorney General and another, Nairobi HCCC No. 845 of 2003, (unreported), courts have consistently held that there is no limitation with respect to constitutional petitions alleging violation of fundamental rights.
49.Also, in HCCC at Nairobi Constitutional and Human rights Division Petition No. 204 of 2013 Njuguna Githu and the Attorney General where the petitioner had claimed that he had suffered various violations of his constitutional rights by the state at the Nyayo torture chambers in the year 1989. The petition was filed in 2013, 24 years later. In dealing with the preliminary objection to dismiss the petition on grounds of limitation of time, Lenaola J. High Court judge then, now Supreme Court judge stated after reviewing several relevant authorities including HCC Petition No. 306 of 2012 Ochieng’ Kenneth K’ogutu vs Kenyatta University and 2 others, Joseph Migere Oloo vs Attorney General Petition No. 424 of 2013. Geral Gichoki and 9 others vs Attorney General Petition NO. 487 of 2012 stated at paragraph 37 as follows:
50.The point was further successfully made in Abraham Kaisha Kanzila alias Moses Savala Keya t/a Kapco machinery services and Milamo investments limited vs Government Central Bank of Kenya and 2 others, Misc. Civil Application 1759 of 2004 where the court observed;
51.It is thus clear that in petition where a violation of right is claimed, the high court has wide original jurisdiction as provided for under Article 165 of the constitution to hear and determine the same even though the same might have been brought several years after the said violation had occurred and this petition is no exception.
II Whether the Attorney General is liable acts of public officers acting in the cause of duty.
52.The constitution of Kenya places an obligation on the state to protect the lives and property of its citizen’s and for state officials to adhere to the national values and principles of governance espoused therein, which include upholding human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, good governance, integrity, transparency, accountability amongst others.
53.This petition revolves around the action of the police, which is an organ responsible for maintaining law and order, preservation of peace, protection of life and property as well as prevention and detection of crime including apprehension of offenders. Article 245(8) of the constitution empowers parliament to enact legislation giving effect to that provision. Consequently, parliament enacted the National Police service Act No 11A of 2021 under which the functions of the police are stipulated under section 24 of the said Act.
54.The petition too revolves around the omission and or commission of the 3rd respondents’ officers. The said 3rd respondent too is an office established under Article 157 of the constitution and Office of the director of public prosecution Act, No 2 of 2013 (ODPP Act ). Both the 2nd and 3rd Respondent perform their duties through delegated authority.
55.In particular section 24 of the National police service Act imposes a negative obligation on the part of the government in general and the police in particular not to violate the rights and fundamental freedoms but also imposes a positive obligation on the part of the agencies to protect the people from threats of violation of the said fundamental rights and freedoms. To this extent the state is liable for violations of fundamental rights and freedoms by private and/or third parties.
56.In Association of victims of post-election violence and inter rights Vs Camerron (272/2003) at para 88 and 89 it was held that;
57.The principle of positive obligation has also been recognized by the European court of Human Rights In Mahmut Kaya Vs Turkey Application No 22535/93. The European Court of Human rights held that;
58.The petitioner was arrested by police officers from Mlolongo police station, and all witnesses listed in the criminal case that was filed being in Mavoko criminal case No 226 of 2015 were the said police officer. It is not in doubt that the said officers were acting in the cause of their duty. The law as to the vicarious liability of a master in tort for the acts of his servant was stated by sir Charles Newbold.P In Muwonge v Attorney-General of Uganda  EA 17 as follows —
59.As was also said by Sir Raymond Evershed MR in Canadian Pacific Railway v Lockhart  All ER 464, cited with approval by this Court in Patel v Yafesi and others  EA 28 at p 31 —
60.The Government proceeding Act, Cap 40 laws of Kenya does provided that indeed the Government can be sued and under section 12 thereof, any case as against the Government and/ or its Agents shall be instituted as against the Attorney General. The upshot is that indeed the Attorney General is liable to be sued on behalf of the Government for act carried out by its agents.
III. Whether the 2nd and 3rd Respondents officers violated the petitioner’s constitutional rights.
61.The petitioner pleaded that it was a common occurrence for police officers from Mlolongo police station to arrest Boda boda riders in would be operations with the intention of soliciting bribes and it was in this context that he was arrested on 10th April 2015 and subsequently charged with three others accused persons in the Principal Magistrate’s court criminal case No 226 of 2015 at Mavoko law courts i.e Republic Vs Josephat Mwathi Mwenda, Samuel Mogaka Ondicho , Josephat Kibagendi Mogaka & Jotham Waswa. They were charged with the offence of gambling and resisting arrest contrary to section 55(1) of the Betting and Gambling Act Cap 131 of the laws of Kenya and section 254(b) of the penal code Chapter 63 laws of kenya respectively.
62.Additionally, Josephat Mwathi Mwenda was charged with the offence of being in possession of cannabis sativa contrary to section 3(1) and 3(2) of the Narcotic Drugs and psychotropic control Act No 4 of 1994. Unbeknown to the petitioner at the time of his arrest and subsequent charging was also part of a wider scheme hatched by police officers from Mlolongo police station to cover up the shooting and subsequent injuries sustained by the said Josephat Mwathi Mwenda by senior sergeant Fredrick Leliman.
63.During the intervening period Josephat Mwathi Mwenda sought intervention of international justice mission and had counsel assigned to him. The said mission wrote a complaint letter to the 2nd respondent to investigate the misconduct of the said police officer Senior Sergeant Fredrick ole Leliman through its internal Affairs unit. On 26th April 2016 when the said Josephat Mwathi Mwenda attended court for his Traffic case No 1650 of 2015 Rep Vs Josphat Mwenda. After attending court, he together with his advocate willie Kimani and taxi driver Joseph Muiruri were abducted by the said Senior sergeant Fredrick ole Leliman and his fellow police officers and later the three were found brutally murdered and their bodies dumped at Ol donyo sabuk river.
64.Subsequently Senior sergeant Fredrick ole leliman & 4 others were charged with the murder in High court of Kenya at Milimani in criminal case 57 of 2016 Rep Vs Fredrick ole Leliman & 4 others Where they found guilty of murdering Josephat Mwathi Mwenda, lawyer Willie Kimani and Joseph Muiruri. Following the murder, it was rather evident that case instituted as against the petitioner was made up of trumped up charges to cover up for the shooting of Josephat Mwathi Mwenda by the said Senior sergeant Fredrick ole Leliman and no doubt was instituted with ulterior motive.
65.The petitioner averred that his rights were breached as he was not informed the reason of his arrest until he was arraigned in court and he was denied and deprived of his freedom without justifiable cause. Further the decision to charge and subsequently prosecute him was commenced without any basis and in the absence of a proper factual foundation and/or was based on improper and ulterior motive of police officers from Mlolongo police station and therefore was carries out in breach of Article 157 (11) of the constitution and also infringed on his rights as guaranteed under Article 50 (2)(e) of the constitution.
66.The 3rd respondent too had enough information to allow for withdrawal of the case against the petitioner since 25th July 2016 and had the option to prevent further violation of the petitioner’s rights by withdrawing the case but failed to do so and thereby violated the petitioner’s right to have a trial begin and conclude without unreasonable delay in violation of Article 47 and 49(1)(a) of the constitution.
67.As a result of the negligent action of the 2nd and 3rd respondents’ agents, the petitioner (an innocent man) continued to have a criminal case hanging over his head in excess of 39 months which had a great psychological impact on the petitioner
68.The Respondents did not file any replying affidavit in response to the petition and therefore the facts as pleaded remained uncontroverted.
(a). Whether failure to inform the petitioner of the reasons of his arrest and subsequent detention for a period of three (3) days before being taken to court violated his rights under Article 49(1)(a) & (f) of the constitution.
69.The petitioner’s contention that he was not informed of the reason of his arrest and was incarcerated at Mlolongo police station from 10th April 2015 to 13th April 2015 before being arraigned in court was not rebutted in any manner by any of the respondents. The 1st and 2nd respondent grounds of opposition as filed did not in any manner refer to this issue and thus the facts as pleaded remained uncontroverted.
70.Article 49(1) (a)(b)(c) and (d) of the constitution deals with the rights of arrested persons and are meant to ensure an accused person enjoys fair trial immediately from the time of Arrest. The said Article provides that;Article 49.Rights of Accused persons(1)An arrested person has a right: -(a)to be informed promptly, in a language that a person understands of(i)the reason for his arrest;(ii)the right to remain silent; and(iii)Consequence of not remaining silent(c)to communicate with an advocate, and other persons whose assistance is necessary.(f)to be brought before court as a 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.
71.Article 9 of the international convention on civil and political rights also provides that no one shall be subjected to Arbitrary arrest, detention or exile. In the case of Christie Vs Leachnisky (1947) UKHL 2 Lord Du Parq stated that;
72.The petitioner’s uncontroverted affidavit under paragraph 5 to 15 detailed his arrest and subsequent detention for three (3) days. I do find that he was not promptly informed of the reason of his arrest, in a language that he understood and was also unlawfully held for three (3) days at Mlolongo police station before being arraigned in court. The failure by the agents of the 2nd Respondent to inform him of the reason of his arrest and continuous detention for more than 24 hours without any valid reason violated the petitioner’s rights as prescribed under Article 49(1)(a) to (g) of the constitution of Kenya 2010.
(b)Whether the Respondents breached the petitioner’s rights to fair trial and fair administrative Action
73.Article 50 of the constitution clearly provides that every person has a right to have any dispute that can be resolved by application of the law decided in a fair and public hearing before a court which includes the right to be presumed innocent until the contrary is proved; to be informed of the charge, with sufficient detail to answer, to have the trial begin and concluded without unreasonable delay. Further Article 159(2)(e) of the constitution also provides that justice shall not be delayed.
74.First and foremost it should be noted that a finding has been made by lessit JA in Nairobi Milimani Criminal Case No 57 of 2016 Republic Vs Fredrick ole Leliman & 4 others that the said officer Fredrick ole Leliman had developed a personal vendetta against the first accused person ( Josephat Mwathi Mwenda) and brought charges against him and his co accused, the petitioner included in Mavoko criminal case No 226 of 2015 Rep Vs Josephat Mwathi Mwenda & 2 others and another traffic case as against the said Josephat Mwathi Mwenda in a bid to silence him. The petitioner and the other co accused were therefore just collateral damage to these schemes which have already been established and this courts takes cognizance of the evidential value of the judgment in Nairobi Milimani Criminal Case No 57 of 2016 Republic Vs Fredrick ole Leliman & 4 others in line with section 84 of the Evidence Act.
75.Police officers are expected to act professionally and conduct investigations in an impartial manner. The uncontroverted evidence herein indicates otherwise and the petitioner and other co accused were rounded up and eventually charged to cover up for the shooting of Josephat Mwenda by the said Senior Sergeant Fredrick ole leliman. In other words, the court process was being used to settle personal scores.
76.In James Karugu Kiiru Vs Joseph Mwamburi and 3 others Nrb C.A No 171 of 2000 the court held that;
77.Also in Kagane Vs Attorney General (1969) EA 643 , Rudd J set the test for reasonable and probable cause thus;
78.Similarly, it was also held in Simba Vs Wambari (1987) 601 that;
79.The law also enjoins the 3rd Respondent and officers working under him to act fairly and make independent decisions not influenced by any person or authority so as to ensure that the petitioner’s constitutional and fundamental rights were not violated. Section 4 of the ODPP Act does stipulate the guiding fundamental principles which guide officers of the ODPP in performance of their duties. Section 5(4)(e) of the ODPP Act, too allows officers of the ODPP to review a decision to prosecute or not to prosecute any criminal offence and where necessary terminate any ongoing prosecution.
80.The brutal Murder of Josephat Mwenda and two others, and subsequent arraignment in court of Senior sergeant Fredrick Ole leliman and other police officers on the charge of Murder exposed the soft underbelly of the criminal case filed. It was for this reason that the prosecuting counsel in Mavoko criminal case No 226 of 2015, applied to court time and again for adjournment as he had sort directions from his bosses in dropping the case as against the petitioner and other co accused as the case had been founded on ulterior motive.
81.The 3rd respondent failed to act fairly by not taking appropriate and expeditious administrative action within a reasonable time to terminate the said criminal case. The petitioner who was under witness protection programme was still made to attend court for over two years (after the apparent facts had come to light) until 28th June 2018 when he was discharged under provisions of section 201 of the Criminal procedure Code.
82.In John Atelu Omilia & Another Vs Attorney General & 4 others the court held that;
83.In R Vs Askor (1990) 2SCR 119 (SCC), there were similar circumstances of delay of trial for almost two years. The court established the factors to consider when deciding whether there had been a delay in trial. The said factors were;a.The length of the delay;b.The explanation for the delay;c.Waiverd.Prejudice to the accused,The longer the delay, the more difficult it should be for the court to excuse it, and very lengthy delay maybe such that they cannot be justified for any reason. Delays attributable to the crown will weigh in favour of the accused. Complex cases, however will justify delays longer than those acceptable in simple cases. Systemic or institutional delays will also weigh against the crown…..”Here, the delay of almost two years following the preliminary hearing was clearly excessive and unreasonable. The crown did not show that the delay did not prejudice the appellants, and nothing in the case was so complex or inherently difficult as to justify the length of the delay. This trial was to be heard in judicial district notorious for the time required to obtain a trial date for figures from comparative district’s demonstrate that the situation there is unreasonable and intolerable
84.The 3rd respondent inaction and omissions of failing to make a decision on whether or not to withdraw the criminal case Mavoko criminal case No 226 of 2015 and continuously causing the matter to be adjourned for two (2) years thus did infringe on the rights of the petitioner to fair administrative action and right to fair hearing.
(c) Whether the petitioner is entitled to be paid damages
85.It is clear that under Article 23 (3) of the constitution that in any proceedings brought under Article 22 of the constitution, a court can grant appropriate relief including an order for compensation, which can be in the form of an award of damages.
86.An award of damages entails exercise of judicial discretion which should be exercised judicially and that means that it must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared any doubts as to the nature and scope of public law remedy in awarding damages and monetary compensation for violation of human rights and enforcement and protection of fundamental rights; such a claim is distinct from, and in addition to remedy in private law for damages in tort.
87.Kriegler J in the south African case of Ntanda zeli Fose Vs The Minister of safety and security did stated that ;
88.The petitioner citing the case of John Atelu Omilia & another Vs Attorney General & 4 others (2017) eKLR & Jeremiah ole Pallangyo Vs Attorney General & 4 others (2021) eKLR did pray that he be awarded Ksh.5,000,000/= and punitive damages of Ksh.1,000,000/=.
89.The 1st and 2nd respondents on the other hand did submit that the petitioner was not entitled to any compensation, but if this court was to find otherwise the petitioner would only be entitled to an award of damages and not both damages and exemplary damages/ aggravated damages, as to award both under the circumstances would amount to making a double award in respect of the same violation’s. See Simpson & co Vs Attorney General (1994) NZLR 667, Peter Ngari Kagume & 7 others Vs Attorney General ( 2009 ) eKLR & James Mwangi Wanyoike & 9 others Vs Attorney General (2012) eKLR.
90.The respondent did further submit that if the court were to find in favour of the petitioner then an award of Ksh 2,000,000/= would be sufficient. Reliance was placed on Sylvanus Okya Ongoro Vs Director of criminal Investigations & 4 others (2020) Eklr.