Case ID:173178

Joseph Kipkembio Ariambe v Officer Commanding Police Station, (O.C.S) Kisii Police Station & 7 others [2021] eKLR

Case Metadata

Case Number:

Petition 1 of 2017

Parties:

Joseph Kipkembio Ariambe v Officer Commanding Police Station, (O.C.S) Kisii Police Station, Anti-Bank Fraud Unit, Officer Comanding Police Division (O.C.P.D) Kisii Central Police Division, Inspector General of Police, Director of Public Prosecution (DPP), Attorney General, National Bank of Kenya Limited & Chief Magistrate’s Court, Kisii Law Courts

Date Delivered:

26 Mar 2021

Case Class:

Civil

Court:

High Court at Kisii

Case Action:

Judgment

Judge(s):

Rose Edwina Atieno Ougo

Citation:

Joseph Kipkembio Ariambe v Officer Commanding Police Station, (O.C.S) Kisii Police Station & 7 others [2021] eKLR

Advocates:

Mr. Kipng’etich for the Petitioner

Miss Chepkirui for 1st to 6th Respondents

Mr, Ochieng h/b for Miss Musembe for the 7th Respondent

Court Division:

Civil

County:

Kisii

Advocates:

Mr. Kipng’etich for the Petitioner

Miss Chepkirui for 1st to 6th Respondents

Mr, Ochieng h/b for Miss Musembe for the 7th Respondent

History Advocates:

One party or some parties represented

Case Outcome:

Petition allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENY A

IN THE HIGH COURT OF KENYA

AT KISII

PETITION NO. 1 OF 2017

IN THE MATTER OF ARTICLES 2 (1) & (4), 10 (1) & (2), 19 (1) & (2), 20(1) & (2),

21 (1), 22(1), 27, 28, 29 (d), 48, 49 (1) (f), 50 (1), 165 & 258 OF THE CONSTITUTION, 2010

AND

IN THE MATTER OF: VIOLATIONS AND/OR INFRINGMENT

ON THE

FUNDAMENTAL RIGHTS OF THE PETITIONER

AND

IN THE MATTER OF: THE ARREST AND DETENTION FOR MORE THAN 24 HOURS

AND IN THE MATTER OF: JOSEPH KIPKEMOI ARIAMBE

IN THE MATTER OF: ALLEGED THEFT BY SERVANT

IN THE MATTER OF: KISII CMCR NO. 321 OF 2017

IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF

RIGHTS & FUNDAMENTAL; FREEDOM) PRACTICE AND PROCEDURE RULES, 2013

BETWEEN

JOSEPH KIPKEMBIO ARIAMBE.............................................................................PETITIONER

AND

THE OFFICER COMMANDING POLICE STATION,

(O.C.S) KISII POLICE STATION......................................................................1

ST

RESPONDENT

THE ANTI-BANK FRAUD UNIT......................................................................2

ND

RESPONDENT

THE OFFICER COMANDING POLICE DIVISION

(O.C.P.D) KISII CENTRAL POLICE DIVISION............................................3

RD

RESPONDENT

THE INSPECTOR GENERAL OF POLICE...................................................4

TH

RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTION (DPP)................................5

TH

RESPONDENT

THE HON. ATTORNEY GENERAL.................................................................6

TH

RESPONDENT

NATIONAL BANK OF KENYA LIMITED......................................................7

TH

RESPONDENT

THE HON. CHIEF MAGISTRATE’S COURT,

KISII LAW COURTS............................................................................................8

TH

RESPONDENT

JUDGMENT

THE PARTIES

1.

The Petitioner who is a citizen of the Republic of Kenya and a resident of Kisii County brings this Petition on his own behalf.

2.

The 1

st

Respondent is a public officer employed under the National Police Service Act. The 2

nd

respondent is a specialized unit charged with carrying out investigations pertaining to frauds occurring within the Banking sector.

3.

The third respondent is a public officer employed by that National Police Service Act.

4.

The 4

th

respondent is duly appointed under the provisions of the National Police Service Act and charged with the mandate of coordinating the operation of the police service.

5.

The 5

th

Respondent is a constitutional body established under the provisions of

Article 157 of the Constitution, 2010

and charged with the mandate of conducting criminal prosecution.

6.

The 6

th

respondent is the principal Legal Advisor to the Government of the Republic of Kenya, bestowed with the duty of advising the government, together with all government officers on legal matters.

7.

The 7

th

respondent is a limited liability company duly incorporated pursuant to the Company’s Act, Chapter 486, Laws of Kenya and carrying on banking business in accordance with the Banking Act.

8.

The 8

th

respondent is a subordinate court established pursuant to

Article 169 of the Constitution 2010

.

THE PETITIONER’S CASE

9.

On 3

rd

February 2017, the Petitioner filed this instant Petition, which was supported by an affidavit he swore on the same date. Subsequently on 15

th

February 2017 the petitioner filed an amended petition seeking the following relief in their Petition:

a) Declaration that the Petitioner herein is entitled to the benefit of and protection under the Constitution, 2010, in the same manner as all other Citizens of the Republic of the Kenya in line with the provisions of Article 20 (1) & (2) thereof.

b) Declaration that the Arrest, Remand and/or Detention of the Petitioner herein in Police Custody for a period in excess of 6 days w.e.f 1

st

February 2017 to the 6

th

day of February 2017, amounts to and/or constitutes violation of the Petitioner’s Constitutional and Fundamental Rights as established and sanctioned vide Article 49 (1) (f) of the Constitution, 2010.

c) Declaration that the intended Charges, vides KISII CMCR NO. 321 OF 2017, arraingnment in court and/or prosecution of the Petitioner herein, founded and/or anchored on the Complaint leading to the arrest and detention of the Petitioner for a period in excess of 6 days w.e.f. 1

st

February 2017 to the 6

th

day of February 2017, are unconstitutional, unlawful, and illegal and void for all intent and purposes.

d) In the alternative and without prejudice to paragraph (c) hereof, a Declaration that any Charges vide KISII CMCR NO. 321 OF 2017 that may have been preferred against the Petitioner and anchored on the arrest and detention at the instance of the 7

th

Respondent in excess of the statutory period are valid.

e) An Order of Judicial Review in the nature of Certiorari to bring unto this Honourable Court and Quash the Charges, mounted and/or preferred against the Petitioner herein and the Proceedings and Decision, if any, vide KISII CMCR NO. 321 OF 2017, to the extent that the arrest and detention preceding the preference of the Charges and the arraignment in Court, violated and/or infringed upon the Petitioner’s Constitutional and Fundamental Rights.

f) Permanent injunction restraining the Respondents, more particularly, the 1

st

- 4

th

Respondent from (sic) continue to hold and/or detain the Petitioner herein, either on the allegations fronted and/or lodged by the 7

th

Respondent or at all.

g) An Order of Judicial Review in the nature of Prohibition, to prohibit the 8

th

Respondent from entertaining, proceeding with, hearing, adjudicating upon and/or rendering a decision in the criminal charges levied against the Petitioner vide KISII CMCR NO. 321 OF 2017, anchored on and/or founded upon the complaint leading to the arrest and detention of the Petitioner for a period in excess of 6 days, contrary to and in contravention of the Constitution, 2010.

h) Payment of General and Exemplary Damages on account of Breach, violation and/or infringement of the Fundamental and Constitutional Rights of the Petitioner.

i) Costs of the Petition be borne by the Respondents jointly and/or severally.

j) The Honourable Court be pleased to issue such orders and/or writs as the Court may deem fit and/or expedient.

THE PETITIONER’S CASE

10.

The Petitioner avers that he is still an employee of the 7

th

Respondent as the operations manager. According to the Petitioner on 31

st

January 2017, officers of the 7

th

respondent informed him of loss of money within the 7

th

Respondent’s – Kisii Branch office which occurred during his tenure as the Operations Manager. He was tasked to carry out background checks with a view of ascertaining the circumstances under which the money was lost. Upon carrying out the background checks he discovered that there had been misappropriation by the Chief Teller, who was the person responsible for custody of the monies once it is released from Treasury. However, on 1

st

February 2017 officers from the 2

nd

respondent in the company of officers of the 7

th

respondent arrested him and took him to the 1

st

respondent where he was booked and placed in the police cells. The officers of the 1

st

-4

th

respondents informed him that there were making arrangements to have him arraigned in court with a view of answering criminal charges allegedly arising from the loss of money.

11.

The petitioner averred that he remained in police custody on 1

st

and 2

nd

February 2017 without indication as to when he would be taken to court. The Petitioner advanced that he was held in custody up to 6

th

February 2017 and when he was arraigned in court, he was charged with what the 1

st

-5

th

respondents deemed as holding charges vide

KISII CMCR NO. 321 OF 2017

. He contends that he was in police custody in excess of 6 days amounting to a violation of his constitutional and fundamental rights. He further contends that he was held in custody without release on bail terms contrary to

Article 49 (2) of the Constitution 2010

. He advanced that he was subjected to cruel and inhuman treatment and suffered psychological torture and mental anguish contrary to

Article 29 of the Constitution

. The petitioner contends that the actions of the respondents constitutes violation of the provisions of

Article 20 (1), 21 (1), 27 (1), 28, 29(f), 49 (1) (f) & (2) & 50 (4) of the Constitution, 2010

.

12.

The plaintiff filed his submissions where he argued that he ought to have been arraigned in court within 24 hours pursuant to

Article 49 (1) (f) of the Constitution 2010

. He cited the case of

Albanus Mwasia Mutua v Republic Criminal Appeal No 120 of 2004

where the Court of Appeal emphasized the duty of the court to enforce the provisions of the Constitution. It was submitted that the petitioner has established a prima facie case that warrants the court granting permanent injunction.

THE RESPONDENTS’ CASE

13.

Eliud Byama, the Deputy Officer Commanding police station of Kisii Central police station filed a replying affidavit on 28

th

February 2017. He averred that the delay in arraigning the Petitioner in court was not occasioned by the 1

st

, 3

rd

and 4

th

respondents but by the nature of the complaint under investigations. He explained that the investigations commenced after it was discovered that a total of Kshs 16,158,200/- had been stolen. On 1

st

February 2017 the petitioner was arrested under the directions of the Investigation Officer, CI Gilbert Fondo of the Banking Fraud Investigation unit Kisumu. The Petitioner was booked at Kisii police station with a commitment from the in charge of the Banking Fraud Investigation Unit that the suspect will be collected and escorted to Kisumu Central Police Station on the following day. The Petitioner was collected by agents of the 2

nd

respondents for transportation to Kisumu in order for the Petitioner to answer charges preferred against him. A crime and incident report was prepared with details of the petitioner, complainant and investigating officer.

14.

A replying affidavit sworn by Maureen Mbelete was filed on behalf of the 5

th

respondent. She advanced that the detainment was not malicious or in any way intended to violate the rights of the applicant. She advanced that the 3 day delay was explained in the affidavit of the 2

nd

respondent.

15.

The 1

st

– 6

th

respondents filed their written submissions on 18

th

November 2020. They identified three issues:

a) Whether the detention was unlawful;

b) Whether the criminal case should be dismissed or declared nullity

c) Who should bear the cost of the suit

16.

It was submitted that the petitioner having been charged with an offence punishable by 7 years imprisonment it was justified for detaining him for more than 1 day. There was reasonable cause to believe that the petitioner was culpable as he was the operations manager of the 7

th

respondent who was the complainant. It was submitted that the right to be released on bail was not absolute and in this case public interest overrode the petitioner’s right to freedom. There was also a likelihood that the petitioner would interfere with the evidence. They relied on the case of

Republic v Daniel Ndegwa Wachira [2015] eKLR

.

17.

They submitted that the criminal case against the petitioner should proceed and cited the case of

Charles Murimi Mbaka v Republic eKLR

and

Republic v David Geoffrey Gitonga Criminal Case No 79 of 2006

. Finally it was advanced that the petitioner ought to bear the cost of the suit.

18.

The 7

th

respondent filed its replying affidavit deposed by Augustine Wanjala. He averred that the 7

th

respondent on 28

th

January 2017 discovered that cash which the 7

th

respondent’s Kisii branch had repatriated to the Kisumu center on 27

th

January 2017 was less by Kshs 9,470,000/-. Upon investigations it was discovered that a Kshs 5,734,000/- was also missing at the Treasury and the Automated Machines (ATMS) had a deficiency of Kshs 912,200/-. The matter was reported at the 2

nd

respondent’s office in Kisumu to assist in investigations. It alleged that the petitioner had at all times signed documents confirming that the 7

th

respondent’s Kisii branch treasury was in order. The petitioner’s co-accused Mr. Geoffery Koech who was the Chief Teller disappeared upon discovery of fraud but was arrested in Nairobi on 1

st

February 2017. He was handed over to the 2

nd

respondent and he confessed to the fraud and further implicated the petitioner. According to the 7

th

respondent, it only reported the loss to the police but had no control over the investigations. The deponent advanced that there is overwhelming evidence against the petitioner in

Kisii Criminal Case No 321 of 2017

and he further averred that the case should not be defeated by the current petition before the court. According to the 7

th

respondent the petitioner had failed to demonstrate the damage he suffered due to the alleged unlawful detention.

19.

In their submissions the 7

th

respondent argued that the investigations, arrest, detention and preferring charges fell within the mandate of the National Police Service and the Director of Public prosecution and the alleged infringement could not be leveled against the 7

th

respondent. In support of its case it cited the case of

Geoffrey K. Sang v Director of Public Prosecution & 4 others [2020] eKLR

. They also advanced that the petitioner failed to frame the alleged violated rights with precision as is required for constitutional petitions. They pointed out that the petitioner failed to outline in great precision how his right under

Article 29 of the Constitution

was violated. They cited the case of

Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No 290 of 2012

.

ANALYSIS AND DETERMINATION

20.

Having considered the pleadings by the parties and their rival submissions the following issues are not in contention:

a) That the 7

th

respondent reported an alleged theft that occurred in its Kisii branch offices and implicated the petitioner as the culprit.

b) That the petitioner was arrested on 1

st

February 2017 following the complaint.

c) That the petitioner was arraigned in court on 6

th

February 2017.

21.

The importance of the protection of personal liberty was discussed in the case of in

Michael Rotich v Republic [2016] eKLR

where the court observed as follows;

Courts are under a constitutional duty to jealously protect this right to liberty and freedom. The right can only be curtailed in circumstances provided under the Constitution and Statute. In an Indian Supreme Court case cited by the State, Neeru Yadav –Vs- State of U.P. & Another Criminal Appeal No.2587 of 2014, the court held at Page 12:

“…we are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bedrock of constitutional right and accentuated further on human rights principles. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilization rests. It cannot be allowed to be paralyzed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order.”

22.

The first issue that arises is thus whether the 5 day detention period was an infringement of the Petitioner’s rights under

Article 49 (1) (f) of the Constitution.

23.

In this case it is not in dispute that the 7

th

respondent discovered that it lost money and the petitioner had been informed of the situation. The petitioner admits that he was arrested and at paragraph 13 of the amended petition, he was remanded at Kisii police station on allegation of theft by servant. Although the petitioner was booked and remanded on 1

st

February 2017 he was not presented before court until 6

th

February 2017 contrary to

Article 49 (1) (f) of the Constitution

. It provides as follows;

“49. (1) An arrested person has the rights-

(f) to be brought to court as soon as reasonably possible, but not later than-

(i) twenty-four hours after being arrested; or

(ii) if the twenty-four hours end outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day”

24.

The import of the provision is to protect arrested persons against unnecessarily long detentions by the police. Arrested persons are thus required to be presented to court in strict adherence with

Article 49 (1) (f) of the Constitution

. The importance of this provision was discussed by the court in

Betty Jemutai Kimeiywa v Republic [2018]eKLR;

“8. There is no paradox or absurdity in the requirement of the 24 hour rule and the need for conclusive investigations into crime for the prosecution to obtain evidence to support the charge. The requirement is not calculated to defeat the Prosecution's ability to investigate and prosecute cases. The object of the 24 hour rule is to obviate prospects of extra-judicial, pre-trial detention by police authorities in contravention of the cardinal principles of the criminal process of fair trial and innocent-until-proven-guilty.

9. Of course, the circumstances in which a crime has been committed may require immediate arrest of the suspect to prevent further crime, to prevent her escape or to protect the evidence or witnesses, and the nature of a serious crime, such as murder, may reasonably require more time to investigate. In the face of the 24 hour rule/requirement, the prudent thing to do is to delay the arrest until the investigations are complete and all prosecution evidence has been collected, except where the suspect is a flight risk or likely to escape, or other risk to the successful prosecution of the offence such as interference with the evidence or witnesses exists.”

25.

In

Salim Kofia Chivui v. Resident Magistrate Butali Law Courts & Another [2012] eKLR

, where the court stated as follows:

“… I therefore find and hold that the petitioner’s right under Article 49(1) (f) were breached when he was arrested on 24th March 2011, detained in police custody and arraigned before the court in Butali on 29th March 2011”… “The tenor and effect of these provisions is to protect any person in Kenya from unwarranted arrest and detention for any period over twenty-four hours or for the period necessary to secure his production in court of the next available date in any other case an detention beyond 24 hours must be authorized by court as provided by Article 49(1) (g). Once the person’s attendance has been secure within the 24 hours, the court may order the person released or may release the person pending charge or trial on bail or bond unless there are compelling reasons not to be released.”

26.

There was no reason availed by the respondents why the appellant was not arraigned in court within the 24 hour period or why they failed to seek orders for continued detention from the court while conducting their investigations in accordance to Article 49(1) (g) of the Constitution.

27.

However, the 7

th

respondent submitted that it was not responsible for the violation of the petitioner’s right because the mandate of investigation, arrest, detention and preferring of charges fell within the mandate of the National Police Service and the 5

th

respondent. I am constrained to agree with the 7

th

respondent’s submissions on grounds that the 7

th

respondent could not have been responsible for any of the alleged violations as it was merely the complainant.

28.

It is my finding that the petitioner’s rights under

Article 49 (1) (f) of the Constitution

was breached by the police officers when they failed to produce him before a court on 2

nd

February 2017.

29.

On the alleged breach of the right to bail under

Article 49 (2) of the Constitution

, the respondents argued that the offence with which the appellant was charged with was a serious offence which attracted 7 years imprisonment.

30. Article 49 (2)

of the Constitution

provides that

‘a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months’.

In

Republic v Danfornd Kabage Mwangi [2016] eKLR

the court held that

“My understanding of Section 49(1) (g) (h) is firstly that the right of an arrested person to bond or bail in respect of any offence is solely at the discretion of the court seized of the application. Secondly, the only accused entitled to a right of an automatic bond or bail, are those charged with offences (which may be referred to as "petty offences") the punishment of which (if found guilty and convicted) is either a fine only, or imprisonment for a term of less than six months. Such offences are spread throughout the Penal Code, and other statutes containing penalty for breach thereof.”

31.

The offence of stealing by servant is serious offence that attracts 7 years prison time if one is found guilty. In the circumstance, I am constrained to agree with the argument proffered by the respondents that the petitioner was not entitled to bail as per

Article 49 (2)

but had a right to bail pursuant

to Article 49 (1) (h) of the Constitution

. Thus the question that a violation

of Article 49 (2) of the Constitution

does not arise.

32.

The Petitioner also failed to demonstrate that he was treated or punished in a cruel, inhuman or degrading manner while he was in police custody. The same was neither pleaded with precision as required. (See

Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No 290 of 2012).

33.

The only violation disclosed by the petition is the infringement of the petitioner’s right under

Article 49 (1) (f) of the Constitution

and I must now turn to explore the remedies available to him.

34.

The petitioner seeks an order to quash the criminal charges mounted against him as well as the proceedings before the Kisii Chief Magistrates Court in KISII CMCR NO. 321 OF 2017. Is this remedy available to the Petitioner?

35.

In

Hussein Khalid And 16 others v Attorney General & 2 others [2019] eKLR

the Supreme Court held as follows;

“[122] Consequently, without downplaying the Appellants’ allegations of infringement, we find that they have recourse under Article 22 against the specific violations they may have undergone in the manner of their arrest, detention and arraignment. They may seek damages or other reliefs available to them. We do not think that such violations in themselves should warrant the vitiating of the trial processes. There exist constitutional safeguards that extend to the right to fair trial and the attendant mechanisms to protect the Appellants. We are persuaded by the holding in

Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69

where it was stated that:

“The effect of a criminal prosecution on an accused person is adverse, but so also are their purpose in the society, which are immense. There is a public interest underlying every criminal prosecution, which is being zealously guarded, whereas at the same time there is a private interest on the rights of the accused person to be protected, by whichever means. Given these bi-polar considerations, it is imperative for the court to balance these considerations vis-à-vis the available evidence.”

[123] Consequently, we are not persuaded, just like the High Court and the Court of Appeal, that this is an instance where this Court should intervene in order to quash the proceedings before the trial Court. The criminal proceedings pending before the trial Court should be allowed to continue expeditiously given the amount of time it has taken.”

36.

The Court of Appeal in

Fappyton Mutuku Ngui v Republic [2014] eKLR

held that;

“The correct position in law was set out in

Julius Kamau Mbugua v Republic (2010) eKLR

where the Court stated that the violation of the appellant’s right to be produced in court within twenty-four hours would not automatically result in his acquittal. Instead, the appellant would be at liberty to seek remedy, in damages, for the violation of his constitutional rights.”

37.

I have already held above that the petitioner has established that his right under

Article 49 (1) (f)

of the Constitution

was violated. However, from the principles established from the above cases such violations in themselves do warrant the vitiating the criminal processes against the petitioner. I therefore hold that the criminal proceedings against the petitioner before the Kisii Chief Magistrates Court in KISII CMCR NO. 321 OF 2017 cannot be set aside or quashed and the only remedy available to the petitioner would be damages for the infringement of his constitutional rights.

38.

I now turn to consider damages available to the petitioner. The Court of Appeal in

Gitobu Imanyara & 2 others v Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR

had this to say in regard to damages:

“…It seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. (emphasis supplied) The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration...”

39.

On damages the petitioner proposed the award of Kshs 3,000,000 and Kshs 2,000,000/- as exemplary damages. They cited the case Of

Chrispine Otieno Caleb v Attorney General [2014] eKLR.

The suit being a malicious prosecution case, the court awarded the plaintiff therein plaintiffs Kshs 2,000,000/- as general damages for malicious prosecution, exemplary damages of Kshs 500,000/- and special damages of Kshs 800,000/-.

40.

The case before me is a constitutional petition and not a malicious prosecution case. In awarding damages this court shall be guided by the principles set out in

Gitobu Imanyara & 2 others v Attorney General

(supra). In

Lucas Omoto Wamari v Attorney General & another [2014] eKLR

the court found that the petitioner was unlawfully shot and injured and therefore his rights under

section 71

of the former Constitution violated. The court also found that his rights under

section 72

of the former Constitution were violated when he was detained for more than 24 hours (for 13 days) without being brought to court as soon as reasonable practicable. The court awarded the petitioner therein Kshs 500,000/-.

41.

In this case in this case the petitioner was in police custody for 5 days and in the circumstance, I find that damages of Kshs 300,000/- is appropriate.

42.

The upshot is that the amended petition is meritorious and I proceed to grant the following orders:

1. A declaration be and is hereby issued that the petitioner’s Fundamental Rights and Freedoms under

Article 49 (1) (f) of the Constitution, 2010

were contravened and grossly violated by the Police officers who were when they failed to present the petition before court within 24 hours following his arrest.

2. That judgment be and is hereby entered in favour of the Petitioner against the 1

st

, 2

nd

, 3

rd

, 4

th

, 5

th

and 6

th

Respondents jointly and severally for a sum of Kshs 300,000/= by way of general damages.

3. The1

st

, 2

nd

, 3

rd

, 4

th

, 5

th

and 6

th

Respondents do pay the costs of these proceedings to the petitioner plus interests thereon at court rates.

DATED AND DELIVERED AT KISII THIS 26TH DAY OF MARCH, 2021.

R. E. OUGO

JUDGE

In the presence of;

Mr. Kipng’etich For the Petitioner

Miss Chepkirui For 1

st

to 6

th

Respondents

Mr, Ochieng h/b for Miss Musembe For the 7

th

Respondent

Ms. Rael Court Assistant