Alex Otieno Onyango v National Police Service, Inspector General of National Police Service,The Director of Public Prosecution , County Government Of Kilifi & Administrator Malindi Sub-County Hospital [2015] KEHC 1852 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MALINDI

CONSTITUTIONAL PETITION NO.6 OF 2015

ALEX OTIENO ONYANGO ..................................................................... APPLICANT

VRS

NATIONAL POLICE SERVICE ….............................................. 1ST RESPONDENT

INSPECTOR GENERAL OF NATIONAL POLICE SERVICE...2ND RESPONDENT

THE  DIRECTOR OF PUBLIC PROSECUTION ......................  3RD RESPONDENT

COUNTY GOVERNMENT OF KILIFI…........................................4TH RESPONDENT

ADMINISTRATOR MALINDI SUB-COUNTY HOSPITAL........ 5TH RESPONDENT

RULING

The application dated 17/4/2015 seeks an order restraining the respondents from releasing the results of the blood samples removed from the applicant for DNA testing.  The application is supported by the applicant's affidavit.  The respondents filed two replying affidavits.  There is the affidavit of Timothy Malingi, a Chief Officer of Health in Kilifi County Government sworn on 20th May 2015 and the affidavit of Vincent Monda, Assistant Director of Public Prosecutions, sworn on 29th April, 2015.

Mr. Obaga, counsel for the  applicant relied on the application and its supporting affidavit.  Counsel maintains that this court issued an order on 10/4/2015 and directed that the issue of DNA testing be dealt with by the trial court.  Contrary to that order, the respondents forcefully removed blood from the applicant who is facing a charge of defilement and took if for DNA testing.  This is contrary to the constitutional provisions against giving self incriminating evidence.

Mr. Nyongesa, prosecuting counsel opposed the application.  Counsel contends that the order of 10/4/2015 was made  when the applicant was seeking anticipating bail.  There was no order stopping the police from doing its statutory duties under the Constitution.  The police took blood samples from the applicant before he was charged.  The blood samples were taken voluntarily and even the applicant signed the request.  No force  was used to obtain the samples.  The blood sample results have already been released by the hospital.

On his part, Mr. Mwanyale, counsel for 4th and 5th respondents opposed the application.  Counsel maintains  that the role played by the hospital is only to draw the blood and forward it to the Government Chemist.   The hospital was not served with the alleged court order as it was not a party to the dispute.

The main contention by the applicant is that blood was forcefully drawn from him against his consent.  Secondly, that there was a court order  stopping the respondents from dealing with the issue of DNA the affidavit of Timothy Malingi shows that on 16/4/2015 the complainant and the applicant were taken to Malindi Sub-County Hospital in the company of the Investigating Officer.  A request to draw blood sample from the two people was made and that was done.  The blood samples were handed over to the Investigating Officer for onward transmission to the Government Chemist.

The charge sheet annexed in the affidavit of Mr. Vincent  Monda shows that the applicant was first arraigned in court on 21/4/2015.  the blood samples were drawn during the investigation stage.  The court order of 10th April, 2015 did not stop the investigating officer from drawing blood samples from the applicant.  All what the court ordered was that the issue of DNA shall be dealt with by the trial court in the event that the applicant was to be charged.  In essence, therefore, it is the trial court that will be able to deal with the DNA evidence in the event that the prosecution relies on such evidence.  The applicant will be able to object to the production of that evidence.  The trial court will be able to decide on whether to accept that evidence or not.

The record shows that no force was used to draw the blood.  There is no evidence that the applicant was forcefully made to consent to the drawing of the blood.  The request to provide blood samples was made on 14/4/2015.  The applicant  signed that request on the same date of 14/4/2015.  The request is worded like an order but there is no evidence that there was force used in drawing blood from the applicant.

In the end, I do find that there was no violation of the applicant's Constitutional rights.  The applicant is facing a defilement charge.  Section 36 of the Sexual offences Act allows the trial court for blood samples testing.  The issue of the DNA test will be dealt with by the trial court as earlier ordered by this court.  The application dated 17th April 2015 lacks merit and the same is dismissed.  Each party to meet their own costs.

Dated, signed and delivered at Malindi this 28th day of October, 2015.

SAID J. CHITEMBWE

JUDGE