Kenneth Omondi Ochieng & 38 others v Republic [2019] KEHC 7452 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NOS. 141 & 143 OF 2019

KENNETH OMONDI OCHIENG & 38 OTHERS........APPLICANTS

VERSUS

REPUBLIC......................................................................RESPONDENT

RULING

On Friday, 10th May 2019, investigators attached to The Directorate of Criminal Investigations went to the offices of Kenya Revenue Authority with a view to effecting arrest of certain officers in the organization who were alleged to be colluding with certain tax payers to evade tax or alternatively pay less tax than what is due from them. The identified officers were summoned to a room where they were informed that they were being arrested. Those arrested are the Applicants in this case. They were the ones who responded to the summons. Other targeted officers went underground when they realized that their colleagues had been arrested. The Applicants were detained at various police stations in Nairobi. A press release was published by the Commissioner General of Kenya Revenue Authority (KRA) on the same 10th May 2019. The press release was titled “Staff interdicted for abetting tax evasion”. The material part of the press release stated as follows:

“KRA has today interdicted 75 staff suspected of involvement in activities that undermine the institution’s mandate by abetting tax evasion and facilitating access to services through bribery and corruption. The practices in question include facilitation of irregular/fraudulent clearance of cargo, fraudulent amendment of tax returns so as to help tax payers evade taxes and irregular issuance of Tax Compliance Certificates. Of those affected, 61 are from Domestic Taxes Department and 14 are from Customs and Border Control Department. The bulk of the (62) cases touch on staff based in Nairobi. Investigations into the racket have been in progress for the last four months with covert assistance provided by national law enforcement agencies to help in the trailing money and communication. The officers affected have been detained for questioning and statement recording, prior to their arraignment in court, expected to happen within May 2019. ”

The Applicants were brought to court on Monday, 13th May 2019.  On same day, the prosecution brought an application before the Chief Magistrate’s Court Nairobi in Miscellaneous Criminal Application No.1964 of 2019 seeking the following orders concerning the Applicants:

“That the respondents herein, be detained by the Directorate of Criminal Investigations (DCI) – Investigation Bureau Custody for a period of twenty-one (21) days in an appropriate police station within Nairobi Central Division (Central Police Station and Kamukunji Police Station) – Nairobi County to enable the Applicant conclude investigations.”

In the grounds in support of the application and the affidavit sworn by Inspector Arthur Onyango, the prosecution stated that the Applicants had been informed of the reason of their arrest and were placed in custody. Their respective mobile phones, laptops and other electronic gadgets and equipment in their possession at the time of their arrest were seized and were yet to be electronically examined and a report prepared. The investigator swore that at the time of filing the application, he had obtained various orders to assist him access information from communication service providers. They had also secured information from the KRA Database to track down the footprints of the electronic trail of those being investigated. The investigator swore that the investigations to be conducted were complex and required time and therefore he sought the detention of the Applicants to enable the investigators complete their investigations. Aware of the constitutional requirement that compelling reasons must be placed before such an order can be issued, the investigators stated that from information received, they required time to carry out detailed interviews of the Applicants and their associates with a view to ascertaining the identity of those who are culpable. The investigator was apprehensive that the Applicants were a flight risk and should therefore be detained pending the conclusion of the investigations. He was apprehensive that if the Applicants were released on bail they would interfere with investigations based on their knowledge of the KRA system either directly or indirectly through an offsite location. He urged the court to take into consideration the fact that the activities of the Applicants and their associates posed a great risk to the mainstay of the economy hence risking the national security of the Republic.

The application was opposed. The Respondents through counsel made submission urging the court to find that no compelling reasons had been placed before the court to entitle the court grant the orders sought by the prosecution. The Applicants complained that their right to liberty was being infringed without any justifiable reasons. They denied the allegation made by the investigator that they would interfere with investigations. They denied that they were a flight risk. They urged the court to take into consideration that, at the time, they had been in custody for three days. There was no justification for their continued detention. They were willing to abide by any terms or conditions that may be imposed by the court to secure their release on bail. They were willing to refrain from visiting any KRA office or communicate with any person connected with the case so as to secure their release on bail. In particular, some of the Applicants told the court that they were either pregnant, were breast feeding mothers while others had ailments of various kinds or were taking care of sick spouses or relatives. They were not a flight risk. In essence, the Applicants were saying that there was no reason for their continued detention by the police.

After considering the submission made by counsel for the Applicants and on behalf of the prosecution, the court (Hon. Mayova – SRM) allowed the prosecution’s application. However, the court ordered the Applicants to be detained for fourteen (14) days instead of the twenty-one (21) days that the prosecution had sought. At the material part of the Ruling, the court held thus:

“All the offences being investigated herein are bailable, I agree with all the defence counsel that the right to freedom and liberty is well protected in the Constitution. And the Judiciary should always guard it jealously. This right is however not absolute. There are instances where the courts will and or has happened before allow subjects to be detained in custody pending trial or investigations. This court was told that pre-trial detention as envisaged by this application is unknown in law. With respect to counsel, I do not agree. Section 36A(2) of the CPC allows for extension of detention period as prayed herein, so long as all the conditions set in the Constitution and the Act are met. It was argued that since investigations have been going on for 4 months, there is no need to hold the suspects any further. I have seen the press release by KRA. Paragraph 2 of the same shows that the investigations were covert. The suspects didn’t know that they were being monitored. After this arrest, their phones, laptops and other electronic gadgets were confiscated. This was about 3 days ago. The investigating officer has told the court through his affidavit, and I find that he has authority to do so since he is the investigator, that he needs time to have the said gadgets analyzed forensically. The nature of investigations herein are complex as stated. They touch on a whole tax system of the nation. They are matters of immense public interest. I therefore do not agree with defence counsel that the application is malicious and an abuse of the court process. I find that there is need to give the investigator more time to include investigations on the suspects held in custody. Their right to freedom and release on bail has to be balanced with the need to give the State ample time to conclude investigations.”

The Applicants were aggrieved by this decision. On 15th May 2019, they filed an application under Sections 362, 123(3) and Section 364 of the Criminal Procedure Code, Articles 165(6), (7), 21(1), 29(a) and (b), 49(1)(a)(i), 49(1)(g), 159and 259of the Constitution of Kenya seeking orders of revision from this court. The Applicant prayed for the court to call for and examine the record of the trial magistrate in the above mentioned case for the purpose of satisfying itself as to the correctness, legality and propriety of the order of the court issued on 13th May 2019. The Applicants asks the court to order their immediate release or any other relief that this court may deem fit to grant so as to secure their right to liberty.

The application is supported by grounds stated on the face of the application and the affidavit of Kenneth Omondi Ochieng, one of the Applicants. In summary, the Applicants stated that their right to freedom had been violated as they were being detained without being informed of the reasons for their arrest. They were aggrieved that the trial court had not taken into consideration that they had not been charged with any offence and that there were no compelling reasons that were placed before the court to entitle the court order their continued detention. The Applicants were of the view that they were being held in detention so as to enable the police secure the arrest of their colleagues who went underground. There was no justification in the allegation by the prosecution that they would interfere with investigations taking into consideration that investigations had been ongoing for a period of four (4) months prior to their arrest. There was no fear that they would interfere with witnesses because they had been interdicted by KRA upon their arrest. The forensic examination of the electronic gadgets seized from them can be analyzed while they are on bail. The Applicants stated that they were willing to co-operate with the police during the investigations without the need of being held in custody as demanded by the prosecution. They were of the view that the order of their continued detention was disproportionate and were in contravention of their constitutional right. They urged the court to allow the application. They pointed out that pursuant to the KRA Code of Conduct and Ethics, if they were detained for more than fourteen (14) days, they would be found to be in gross misconduct and subject to summary dismissal from employment. They urged the court to take this into account in considering their application to be released on bail pending further investigations by the police. The Applicants annexed a bundle of authorities in support of their application. This court shall consider some of the authorities cited later in this Ruling.

The application is opposed. Inspector Arthur Onyango swore a replying affidavit in opposition to the application. He swore that pursuant to the provisions of Article 157(4)of the Constitution and Section 5(1)(a) of the Office of the Director of Public Prosecutions Act, the Director of Criminal Investigation was directed to commence investigations in relation to criminal offences that were said to be committed by Kenya Revenue Authority (KRA) staff and a number of tax payers. The deponent was ordered to open an inquiry file and commence investigations. Some of the offences which they were mandated to investigate included Abuse of Office contrary to Section 46 of Anti-corruption and Economic Crimes Act, Neglect of official Duties contrary to Section 128 of the Penal Code, Money Launderingcontrary to Section 3 of the Proceeds of Crime and Anti-Money Laundering Act, Tax Avoidance contrary to Section 85 of the Tax Appeals Procedures Act, Failure to Pay Taxescontrary to Section 95 of the Tax Appeal Procedures Act and Fraud Related to Tax contrary to Section 97of the Tax Appeal Procedures Act. The investigator swore that they had obtained a court order to forensically examine the communication details from those being investigated during the material period of concern from communication service providers. They were also in the process of analyzing M-pesa statements of those being investigated. They were also forensically examining the KRA Database with a view to following digital footprints of those being investigated.

The investigator deponed that the evidence they had gathered so far and the intelligence they had obtained was that the Applicants and their associates were actively involved and colluded with tax payers to evade payment of taxes or to reduce the tax payer’s tax liability. He explained that the reason why the police sought the Applicants’ detention was because of the apprehension that the Applicants and their associates would sabotage KRA’s operations and thereby interfere with ongoing investigations. He annexed copies of a Telegram group dubbed “Ushuru Welfare Group” where some employees of KRA using pseudo names had threatened to sabotage KRA’s operations. He deponed that there existed compelling reasons to justify denial of bail to the Applicants. In essence, the Respondent was saying that the investigators should be given time to conclude their investigations while the Applicants were in custody. He explained that the activities of the Applicants and their associates pose a great risk to the mainstay of the economy hence risking the national security of the Republic. It was for that reason that the prosecution was urging the court to dismiss the application and uphold the decision of the trial court.

During the hearing of the application, this court heard oral submission made by Prof. Ojienda, Mr. Muthama, Mr. Odhiambo, Mr. B. Odhiambo, Prof. Wajackoyah, Mr. Anyoka, Mr. Waudo, Mr. Ndiso, Mr. Mege, Mr. Swaka, Mr. Muthomi, Mr. Omari, Mr. Sikuta and Ms. Soweto for the Applicants and Mr. Ondimu and Ms. Sigei for the State. This court has carefully considered the said submissions. It was clear from the submission that there are several issues for determination by this court, the main of which is whether the prosecution had placed compelling reasons for the Applicants continued detention pending investigations by the police.

It was common ground that the basis upon which the prosecution made the application to the magistrate’s court to detain the Applicants is Article 49 of the Constitution. The Articleprovides thus:

“(1) An arrested person has the right –

(a) to be informed promptly, in a language that the person understands, of –

(i) the reason for the arrest;

(ii) the right to remain silent;

(iii) the consequence of not remaining silent;

(b) to remain silent;

(c) to communicate with an advocate, and other persons whose assistance is necessary;

(d) not to be compelled to make any confession or admission that would be used in evidence against the person;

(e) to be held separately from persons who are serving a sentence;

(f) to be brought before a court as 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;

(g) at the first appearance, to be charged or informed of the reason for the detention continuing, or to be released; and

(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

Pursuant to this Article of the Constitution, Parliament did amend the Criminal Procedure Code in 2014 and inserted Section 36A which provides as follows:

“(1) Pursuant to Article 49(1)(f) and (g) of the Constitution, a police officer shall present a person who has been arrested in court within twenty-four hours after being arrested.

(2) Notwithstanding subsection (1), if a police officer has reasonablegrounds to believe that the detention of a person arrested beyond the twenty-four hour period is necessary, the police  officer shall-

(a)  produce the suspect before a court; and

(b) apply in writing to the court for an extension of time for  holding

the suspect in custody.

(3) An application under subsection (2) shall be supported by anaffidavit sworn by the police officer and shall specify-

(a) the nature of the offence for which the suspect has been arrested;

(b) the general nature of the evidence on which the suspect has been arrested;

(c) the inquiries that have been made by the police in relation to the offence and any further inquiries proposed to be made by the police; and

(d) the reasons necessitating the continued holding of the suspect in custody.

(4) In determining an application under subsection (2), the courtshall consider any objection that the suspect may have inrelation to the application and may-

(a) release the suspect unconditionally;

(b) release the suspect subject to such conditions as the  Court may

(c)  impose to ensure that the suspect-

(i)  does not, while on release, commit an offence, interfere withwitnesses or the investigations in relation to the offence forwhich the suspect has been arrested;

(ii) is available for the purpose of facilitating the conduct of investigations and the preparation of any report to be submitted to the court dealing with the matter in respect of which the suspect stands accused; and

(iii) appears at such a time and place as the court may specify for the purpose of conducting preliminary proceedings or the trial or for the purpose of assisting the police with their inquiries; or

(c)  having regard to the circumstances specified under subsection(5), make an order for the remand of the suspect in custody.

(5)  A court shall not make an order for the remand in custody of asuspect under subsection (5)(c) unless-

a. there are compelling reasons for believing that the suspect shallnot appear for trial, may interfere with the witnesses or the conduct of investigations, or commit an offence while on release;

b. it is necessary to keep the suspect in custody for his protection, or,

where the suspect is a minor, for his welfare;

(c) the suspect is serving a custodial sentence; or

(d) the suspect, having been arrested in relation to the commission of

an offence, has breached a condition for his release.

(6) The court may, for the purpose of ensuring the attendance of a suspect under subsection (4)(b)(ii) or (iii), require the suspect –

a) to execute a bond for such reasonable amount as the court considers appropriate in the circumstances; and

to provide one or more suitable sureties for the bond.

(7) Where a court makes an order for the remand of a suspect under

subsection (4)(c), the period of remand shall not exceed thirtydays.

(8)  A police officer who detains a suspect in respect of whom an orderhas been issued under subsection (4)(c) may, at any time before the expiry of the period of remand specified by the court, apply to the Court for an extension of that period.

(9) The court shall not make an order for the extension of the time for remand under subsection (8) unless it is satisfied that having regard to the circumstances for which an order was issued under subsection (4)(c), it is necessary to grant the order.

(10) Where the court grants an extension under subsection (9), suchperiod shall not, together with the period for which the suspect was first remanded in custody, exceed ninety days.”

The prosecution, through an application filed before the magistrate’s court, sought the continued detention of the Applicants essentially on the grounds that they had not completed investigations and would require more time to access the communication data and the electronic data from the service provider and the KRA database respectively. According to the investigator, it would not be possible to complete the investigations without forensic examination of the electronic devices in the Applicants’ possession at the time of their arrest. The investigator sought the continued detention of the Applicants due to apprehension that the Applicants were likely to tamper with the electronic evidence either directly or remotely.

They were also apprehensive that the Applicants would sabotage the operations of KRA, and indeed interfere with the investigations. In support of this assertion, the investigator attached a print-out from a Telegram social media platform titled “Ushuru Welfare Group” which was established on 10th May 2019 whose chats, in their view, clearly pointed to an intention to interfere with investigations. It was the prosecutions’ case that, firstly, there was probable cause for the Applicants’ arrest and secondly, there were compelling reasons for their continued detention pending completion of investigations. The prosecution finally urged the court to consider public interest and the fact that the activities of the Applicants and their associates posed a risk to the mainstay of the economic and hence national security.

On their part, it was the Applicants’ submission that the prosecution had not established reasonable grounds to believe that the Applicants had committed an offence to entitle the police arrest them and subsequently seek their continued detention. The Applicants complained that they had not been informed the reason of their arrest. They wondered why no charge had been laid against them despite being in detention for seven (7) days at the time the application was being argued. They told the court that on the basis of the press release that was issued by KRA, it was clear that investigations had been ongoing for a period of four months prior to the Applicants’ arrest. During that period, the police were expected to have completed their investigations. The Applicants argued that there was absolutely no justification why they were arrested because whatever information that the police required from them, they would have obtained the same while the Applicants enjoyed their liberty.

On the same premise, they submitted that there were no compelling reasons placed by the prosecution to entitle the court issue an order for their continued detention. They pointed out that upon their arrest, they were interdicted and did not therefore have access to KRA offices. They would not interfere with investigations. They were willing to answer any summons issued by the investigator to assist the police with investigations. They urged the court to take into account the fact that their continued detention would impact negatively on their employment since one of their condition of employment was that if they were detained for a period of fourteen (14) days or more, their employer would be entitled to summarily dismiss them from employment. They therefore submitted that there was no basis at all for their continued detention since there was no charge that had been laid against them. They further pointed out that criminal liability being personal, the investigator had not indicated which particular individual was culpable and for which particular offence. Indeed, they had not been individually informed what offences were being investigated against each of them.

This court has carefully considered the matters in issue in this application. That the police have power to arrest with or without a warrant of arrest is provided for under Section 59 of the National Police Service Act. However, for the police to arrest a person without a warrant of arrest there must be reasonable ground to believe that the person has committed an offence. Some of the reasonable grounds have been set out under Section 58 of the National Police Service Act. It is instructive to note that the power of arrest by the police without a warrant is specifically stated to be “subject to Article 49 of the Constitution.” Section 35 of the National Police Service Act sets out the function of the Office of the Director of Criminal Investigations which includes the undertaking of investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime and cyber-crime.

The Director of Criminal Investigation has also power to collect and provide crime intelligence. It is clear from the above cited provisions of the National Police Service Act that the police in general, and the Director of Criminal Investigations in particular, have power to investigate, and in the course of the investigations, arrest and detain any person who is suspected to have committed crime. It is instructive that when conducting investigations, the police are not limited either in time or scope.

In the present application, the prosecution established to the satisfaction of this court that there was basis upon which the Director of Criminal Investigations commenced investigations at Kenya Revenue Authority. The Director of Criminal Investigations was directed by the Director of Public Prosecutions under Article 157(4) of the Constitution to investigate alleged abetting of tax evasion by tax payers and illegal facilitation of other tax payers to pay lesser tax liability than what is actually due from such tax payers. This court finds and holds that the Director of Criminal Investigations had authority to investigate the allegations of criminal activity at the Kenya Revenue Authority.

The issue in contention is whether the Director of Criminal Investigations properly exercised his authority when he arrested the Applicants. From the submission made, it was clear that the Applicants were not aware that they were being investigated. It was submitted on behalf of the prosecution that covert intelligence had pointed to the Applicants as suspects in the criminal enterprise that was the subject of investigations. The Director of Criminal Investigations had to move with speed to arrest the Applicants so as to forestall and prevent them from destroying or tampering with electronic evidence that will be the mainstay of the prosecution’s case. Indeed, the investigators confiscated the electronic equipment in the Applicants’ possession with a view to having the same forensically examined.

This court agrees with the submission made by the prosecution that it was necessary for such a swoop to be made in order that electronic and other crucial evidence may not be tampered with. However, it was clear to this court that the swoop and the subsequent arrest of the Applicants  was not undertaken in accordance with Article 49(1)(a) of the Constitution that required the police to promptly inform any arrested person of the reason of his or her arrest in a language that he or she understands. The Applicants only became aware of the reasons for their arrest from the press release that was subsequently issued by the Commissioner General of Kenya Revenue Authority. The press release was issued after their arrest. A question arose during the hearing of the application on how such information is to be communicated. Is it orally or in writing? This court holds that the requirement of Article 49(1)(a) of the Constitution will be satisfied when it is established that the reason for their arrest was communicated to the arrested person and such arrested person acknowledges that he was duly informed. In the present application, there was no evidence placed before the court to suggest that the Applicants were duly informed of the reason of their arrest.

As stated earlier in this Ruling, the Applicants were arrested on a Friday. Pursuant to Article 49(1)(f)(ii) of the Constitution, they were required to be produced in court on the next day that the court would be sitting i.e. on Monday. The Applicants were produced before the magistrate’s court on Monday, 13th May 2019. They were confronted with an application filed by the prosecution which sought their continued detention while the police were concluding their investigations. The Applicants opposed the application. The reasons that were argued in support and in opposition to the application have been stated earlier in this Ruling.

What emerged from the submission made by the prosecution is that it appeared that the prosecution was not sure of what charges they intend to lay against the Applicants. Whereas the affidavit in opposition to the application sworn by the investigator indicated that the Applicants were being investigated for offences related to tax evasion, money laundering and tax fraud, it was submitted that the Applicants would be charged as either principal offenders or joint offenders in prosecution of common purpose under Section 20 and 21 of the Penal Code. This information was not availed to the Applicants when the prosecution made the application for the continued detention of the Applicants before the magistrate’s court. This court got the impression that the arrest of the Applicants was rushed even before investigations had concretized and the criminal culpability of each applicant had been established. That was the reason why the prosecution was not even ready to present the court with a holding charge or a charge so as to put the Applicants on notice on the likely charges that they would face upon conclusion of the investigations.

As correctly observed by the Applicants, it was apparent that they were being treated as a group yet the criminal justice system determines individual criminal culpability. This court agrees with the Applicants that the trial court erred when it allowed the prosecution’s application to continue to detain them when the prosecution failed to set out what each applicant was being investigated for and the charges that each applicant would likely face.

It was evident from the submission made that both the Applicants and the Respondent anchored their arguments on their respective interpretation of the Constitution. In the case of the Applicants, it was their submission that their right to liberty and fair trial were infringed by their arrest and continued detention. On the other hand, it was the Respondent’s argument that it acted within the Constitution when the police arrested the Applicants and sought their detention pending conclusion of investigations. Both the Applicants and the Respondent were giving interpretation to theConstitution in support of the positions they have respectively taken. What are the constitutional principles that ought to be taken into account by this court in determining this application? Article 259(1) of the Constitution provides thus:

“This Constitution shall be interpreted in a manner that –

(a) promotes its purposes, values and principles;

(b) advances the rule of law, the human rights and fundamental freedoms in the bill of rights;

(c) permits the development of the law; and

(d) contributes to good governance.”

Odunga J in Wycliffe Oparanya & 3 Others v Director of Public Prosecutions & Another [2015] eKLR held that:

“158. It is important in determining this petition to appreciate the nature of the Constitution of Kenya, 2010. Our Constitution, it has been held is a transformative Constitution due in part to the national values and principles of governance in Article 10. Our Constitution, in my view is a value oriented Constitution as opposed to a structured one. Its interpretation and application must therefore not be mechanical one but must be guided by the spirit and the soul of the Constitution itself ingrained in the national values and principles of governance espoused in the preamble andinter aliaArticle 10 of the Constitution. The distinction between the two was made by Ulrich Karpen in The Constitution of the Federal Republic of Germany thus:

“…the value-oriented, concerned with intensely human and humane aspirations or personality, conscience and freedom; the structure-oriented, concerned with vastly more mundane and mechanical matters like territorial boundaries, local government, institutional arrangements.”

159. Our Constitution embodies the values of the Kenya Society, as well as the aspirations, dreams and fears of our nation as espoused in Article 10. It is not focused in presenting an organisation of government, but rather is a value system itself hence not concerned only with defining human rights and duties of individuals and State organs but goes further to find values and goals in the Constitution and transform them into reality. As appreciated by Ojwang JSC in Joseph Kimani Gathungu vs Attorney General & 5 Others Constitutional Reference No.12 of 2010:

“A scrutiny of several Constitutions Kenya has had since independence shows that, whereas the earlier ones were designed as little more than a regulatory formula for State affairs, the Constitution of 2010 is dominated by a “social orientation”, and as its main theme, “rights, welfare, empowerment”, and the Constitution offers these values as the reference point in governance functions.”

In Dr. Robert K. Anyisi vs Kenya Revenue Authority & Another [2016] eKLR, the Court held thus:

“80. In Murungaru vs. Kenya Anti-Corruption Commission & Another Nairobi HCMCA No.54 of 2006 [2006] 2 KLR 733, it was held that our Constitution must be interpreted within the context and social, and economic development keeping in mind the basic philosophy behind the particular provisions of the Constitution. The same view is expressed in Matter of the Kenya National Human Rights Commission, Advisory Opinion No.1 of 2012; [2014] eKLR, at paragraph 26 where the Supreme Court opined that:

“…But what is meant by a holistic interpretation of the Constitution”. It must mean interpreting the Constitution in context. It is the contextual analysis of the constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explanation of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”

81. It is therefore my view that the Bill of Rights is partly steeped in historical context. This view has in fact inquired jurisprudential recognition by the Supreme Court which In the Matter of the Interim Independent Electoral Commission – Constitutional Application No.2 of 2011 [2011] eKLR paragraph 86, stated:

“The rules of constitutional interpretation do not favour formalistic or positivistic approach (Article 20(4) and 259(1)). The Constitution has incorporated non legal considerations which we must take into account in exercising our jurisdiction. The Constitution has a most modern Bill of Rights, that envisions a human rights based and social justice oriented state and society. The values and principles articulated in the preamble, in article 10, in chapter 6 and in various provisions, reflect historical, economic, social, cultural and political realities and aspirations that are critical in building a robust patriotic and indigenous jurisprudence for Kenya. Article 159(1) states that juridical authority is derived from the people. That authority must be reflected in the decisions made by the court.”

In interpreting Article 49(1) of the Constitution, this court shall be guided by Article 259(1) of the Constitution and the decisions of the courts in regard to interpretation of theConstitution. In other words, this court will interpret the said Articlewith a view to promoting the values and the principles of the Constitutionwhich include promoting the Bill of Rights and entrenching respect for the rule of law.

The court must also interpret the said Article in light of the historical developments of the criminal justice system and what informed the expression of the said Article in the Constitution by the People of Kenya. Article 49(1) of the Constitution protects the rights of arrested persons prior to their arraignment before court. The police, under the Constitution and the National Police Service Act cannot arrest any person other than on “reasonable grounds to believe” (see Section 36A(2) of the Criminal Procedure Code) that such person has committed a recognizable offence and is either being investigated with a view to having him charged in court or is being investigated with a view to determining if he has committed an offence. Article 49(1) of the Constitutiondoes not therefore envisage that the police would arrest a person for any other purpose other than investigating whether a crime has been committed, and if so, in preparation of that person to be brought in court within twenty-four hours to be charged with the offence or for the police to seek extension orders from the court to continue detaining the person for the sole purpose of completing investigations. Of course, it is envisaged that the arrested person will not be held or detained for an indefinite or unspecified period of time. This court interprets that from the time the person is arrested to the time the person is arraigned in court, information is key. The person must be informed promptly the reason for his arrest. And if the police seek extension of time to continue holding the person, the reasons for holding that person must be provided to the court. The reasons must be such that the court is persuaded that there is sufficient justification for the arrested person to lose his liberty. Article 49(1) of the Constitution does not therefore give the police a carte blanche to the police to arrest people for any other purpose other than in preparation to present them to court for the purpose of having them charged with a recognized offence.

It is in that regard, that the arrest of the Applicants on 10th May 2019 and their detention for three days without their being informed of why they had been arrested breached their rights to fair trial as envisaged under Article 50 of the Constitution. The Applicants’ arrest fell in the category of what is now infamously referred to as the “Friday arrests” which are intended for the sole purpose of holding arrested persons in police custody over the weekend for three (3) days before their arraignment in court. It is not by coincidence or by chance that the right to fair trial is one of only four fundamental rights and freedoms that may not be limited under any circumstances. (See Article 25 of the Constitution).

It is also not by accident that Section 36A(1) of the Criminal Procedure Code specifically recognize that the section is subject to Article 49(1)(f) and (g) of the Constitution. From the submission made, it was clear to this court that the application made by the Respondent seeking the continued detention of the Applicants did not meet the threshold under Section 36A(3) of the Criminal Procedure Code that required the investigator to state in the affidavit in support of the application the nature of the offence for which each individual applicant had been arrested, the general nature of the evidence which the police at the time of arrest had in their possession against each individual applicant. This evidence must prima facie persuade the court that there is justification for the continued detention of the arrested person. The affidavit that the investigator swore only constituted generalized allegations against all Applicants without stating what preliminary evidence the police had against each applicant. It is conceded that the investigator deponed to the areas of inquiry that he was seeking to investigate – in fact, the investigator sought assistance of the court to access certain information from communication service providers and the KRA database. That may be the reason why the Respondent could not charge any of the Applicants when they presented them before court on 13th May 2019 even after holding them in custody for three days.

It was argued on behalf of the Respondent that it was not necessary for the prosecution to charge or present a holding charge in court when the Applicants were brought to court during their first appearance. Mr. Ondimu for the Respondent argued that the decision in Michael Rotich -vs- Republic   [2016] eKLR was distinguishable in that Section 36A of the Criminal Procedure Code does not envisage that a person brought to court during his first appearance ought to be charged or a holding charge be presented to court. In that case, the court held thus:

“In compliance with Article 49(1)(f)(i) of the Constitution, the Applicant was brought before the court within 24 hours of his arrest. However, contrary to Article 49(g) of the Constitution, the Applicant was neither charged nor informed of the reasons for his continued detention. As stated earlier in this Ruling, the recent trend where a person is arrested and arraigned in court within 24 hours specifically for the prosecution to seek extension of time to continue to detain such person, without any charge or holding charge being preferred against such person is unconstitutional. The police have no authority in law to arrest and detain any person without sufficient grounds. Those grounds can only be sufficient if the police have prima facie evidence which can enable such person to be charged with a disclosed offence. The fact that the prosecution has a prima facie evidence of a disclosed offence can be presented in court in form of a holding charge setting out the particular offence. Such holding charge will enable an accused person to know of the reason for his arrest as provided under Article 49(1)(a) of the Constitution. It will not do for the prosecution to present a person who has been arrested in court and seek his continued detention without a charge or a holding charge being lodged in court. It is unlawful for the police to seek to have a person who has been arrested to continue to remain in its custody without a formal charge being laid in court. If this trend continues, it would erode all the gains made in the advancement of human rights and fundamental freedoms as provided in the Bill of Rights since the Constitution was promulgated in August 2010. ”

Mr. Ondimu cited two decisions of the court in a bid to distinguish the above decision. The first one is that of Waiss Abdulaziz Mohammed v Republic [2017] eKLR where Ngenye J was addressing a similar application such as the present one where the police in that case had made an application for the applicant to be continued to be detained for a further period of thirty days to enable investigations to be concluded in the matter. It is noteworthy that in the application before the magistrate’s court, the prosecution had hinged its application on the provisions of Article 49(1)(f), (g) & (h) of the Constitution and Section 33 of the Prevention of Terrorism Act.  The court held thus:

“In the present case, oral submissions were made before the trial court in the Applicant’s presence and reasons set out why the Respondent wanted the detention period of the Applicant extended. My understanding of both Article 49(1)(g) as well as Section 33(3) of POTA is that the application for continued detention should be made in the presence of the Respondent (suspect/accused). Section 33(3) further stipulates that the Respondent ought to be served with the application well before it is made. In the present case, there is no evidence that the latter requirement was complied with. However, the Respondent was asked by the court if he had any objection to the application being made to which he respondent he had none. Therefore, it is safe to conclude that he understood the application itself; specifically the reasons advanced by the prosecution for his continued detention. l also hold that Article 49(1)(g) allows the detention of an arrested person without trial as long as, first, he is informed of the reason for the continued detention and second, the continued detention is made with the leave of the court. Accordingly, there was nothing unconstitutional or illegal in the order made for the detention of the Applicant without charge.”

The other decision is that of Samuel Cheruiyot Arap Langat vs Republic [1982] eKLR which was delivered by Z. R. Chesoni when he was a Judge of the High Court. It is important to point that the decision was rendered twenty-eight (28) years prior to the promulgation of the 2010 Constitution. Indeed, on reading the Ruling, the Court was giving an interpretation of Section 72 and Section 77 of the now retired Constitution. The Learned Judge held thus:

“There seems to be a dangerous precedent being introduced in our legal system by the prosecution of bringing an accused person to court on what has been referred to by the prosecution as a “holding charge”. Neither the constitution nor the criminal law of Kenya provides for such a charge. That being the position it is necessary to point out that the courts are not going to allow an accused person to be indefinitely held in custody because he is on what the prosecution call a holding charge, a phrase which is meaningless in the legal language of Kenya. The (laws) of this country permits the prosecution to amend a charge and/or even substitute a new charge for the original charge. The impression one gets from the phrase “a holding charge” is that the prosecution has not decided the offence with which charge the accused but they would like him to be kept in custody on a provisional charge while the prosecution make up their mind, and in the ultimate they may not even charge him. If such practice were allowed to go on it would grossly infringe the citizens’ freedom and fundamental rights. The police would slaggen down in their investigations which would lead to many persons being brought before the court before investigations are complete and the exact charged laid.”

In respect of the Waiss decision above, it was clear that my sister Ngenye J was interpreting Article 49(1)(g) of the Constitution in respect of a suspect (and not an arrested person) who was being held under the Prevention of Terrorism Act which has a specific law that allow the police to hold such suspect in detention pending the laying of charges. The specific section is Section 33 of Prevention of Terrorism Act. This section has an elaborate procedure which has been alluded to in the citation above when the police seek to detain a suspect (not an arrested person) beyond the stipulated period specified in Section 32 of the Act. Again, the police must prove to the court that “he has reasonable grounds to believe that the detention of the suspect ….is necessary.”  The Waiss decision is therefore distinguishable from the Michael Rotich decision. In the Waiss decision, the applicant did not object to the application and appeared to be aware that he was being held as a suspect on terrorism related offences.

It was also evident that in the application presented before the magistrate’s court, the affidavit in support of the application had disclosed the circumstances of the appellant’s arrest and the reasons why he was being suspected of committing terrorism related offences. It was therefore not necessary for the police to present before the court a charge or a holding charge. This court is aware of the nature of terrorism related offences. That recognition made Parliament enact the Prevention of Terrorism Act whose main aim is to protect the society from those minded to commit acts of terror against innocent citizenry. Acts of terror are random and can target anybody hence the powers of detention given to the police where there is reasonable suspicion that a suspect intends to commit acts of terror. The Michael Rotich case, dealt with facts similar to the present application where the prosecution has not indicated to each applicant what charges they are likely to face if the police were to be allowed to continue detaining each applicant for an extended period of time before being brought to court to be formally charged.

In the Samuel Cheruiyot Case (supra), as stated earlier in this Ruling, the Learned Judge was interpreting the provisions of the now retired Constitution. Under Section 72and77 of the now repealed Constitution, there were certain circumstances that the arrested person could be held for an indefinite period. They included all capital offences such as murder, robbery with violence and treason. The practice by the police then was to charge a suspect with a capital offence which was non-bailable to enable them hold the suspect for an extended and undefined period of time without actually having any evidence to charge that person with the specific capital offence. This practice resulted in the abuse of arrested persons’ rights. It should also be noted that at the time there was no legal requirement for the prosecution to supply the accused with witnesses’ statements as is the norm today. The suspect who was presented to court and charged with a holding charge had no means of knowing the evidence that the prosecution sought to present against him during trial.

In certain instances, arrested persons sought to be charged with politically related reasons were held in custody on more serious holding charges so that they were not released on bail pending their trial. It was for that reason that Chesoni J deprecated the practice. This court agrees with the reasoning of the Learned Judge given the environment and the circumstances that prevailed at the time. Unlike that time, we now have a progressive constitutional dispensation that protects the rights of arrested, detained and accused persons. Those rights are enshrined in Articles 49, 50and 51 of the Constitution. As an additional measure, Article 25(c) of the Constitution declares the right to fair trial one of those rights that cannot be limited under any circumstances.

The reason why this court in the Michael Rotich Case (supra)required a charge or a holding charge or provisional charge to be presented to court when the prosecution is seeking extension of time to hold an arrested person in detention is firstly, to inform the arrested person of the charge or the likely charge that he or she may face. Secondly, it will inform the court on the serious nature or otherwise of the charge or charges intended to be laid against the arrested person so as to enable the court decide whether or not such person should continue to be detained by the police. An example is where an arrested person is brought to court and the investigator informs the court that the prosecution intends to charge the arrested person with murder. When the investigator seeks extension of time to hold such arrested person pending further investigations, the court will have been put on notice of the serious nature of the charge that the arrested person is likely to face. That can be compared to where the investigator seeks extension of time to continue to detain an arrested person intended to be charged with an offence of theft. Of course, the consideration that the court will have in mind in determining whether or not to allow the prosecution’s application will depend on the serious nature of the charge among other factors. This court therefore holds that Article 49(1)(f) and (g) of the Constitution requires an arrested person to be informed at the earliest possible opportunity of the reason for the arrest and the offence or offences he is said to have committed.

An issue that arose during the hearing of this application is the circumstance under which an investigator may be said to have “reasonable grounds to believe that the detention of a person arrested beyond the twenty-four period is necessary” as provided under Section 36A(2) of the Criminal Procedure Code. The term “reasonable ground to believe” used in Section 36A(2) of the Criminal Procedure Code and Section 31 of the Prevention of Terrorism Act has not been defined.

It was argued on behalf of the prosecution that the interpretation given to the term should be similar to that was defined by the House of Lords in O’Hara v Chief Constable of the Royal Ulster Constabulary delivered on 12th December 1996 and published under Session 1996 – 97 in the publication on the internet judgments. In that case, the issue was whether the police had established that there were prima facie grounds to arrest the appellant. The court, in interpreting Section 12(1) of the English Prevention of Terrorism (Temporary Provisions) Act 1984 which read as follows:

“…a constable may arrest without warrant a person whom he has reasonable grounds of suspecting to be –

(b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this part of this act applies…”

held thus:

“Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942,949. (2) Hearsay information may therefore afford a constable a reasonable grounds to arrest. Such information may come from other officers: Hussien’s case, ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive “discretion” to arrest or not as Lord Diplock described it in Mohammed-Holgate v. Duke [1984] A.C. 437,446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers. Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1).”Per Lord Steyn.

Lord Hope of Craighead held thus:

“My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.”

In the United States of America, the term that is used in law enforcement when securing the arrest of suspects is “probable cause”. This term is contained in the Fourth Amendment of the United States of America Constitution. It provides thus:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

The U.S. Supreme Court in Brinegar v United States  338 US 160 (1949) defined “probable cause” as

“where the facts and circumstances within the officers’ knowledge, and of which they have reasonable trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”

Black’s Law Dictionary, 10th Edition defines “reasonable suspicion” to be:

“A particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity. A police officer must have a reasonable suspicion to stop a person in a public place.”

As is evident the term “reasonable ground to believe” used in Section 36A(2) of the Criminal Procedure Code is an objective test. It is an objective test in the sense that the reasons presented to court for the continued detention of an arrested person must be such that a reasonable man applying his mind to the particular facts reaches the conclusion that indeed there is justification in having the arrested person to be continued to be detained. The prosecution must also fulfill the requirements of Section 36A(3) and (5) of the Criminal Procedure Code, which include convincing the court that the offence he is investigating is of such a serious nature that it will necessitate the holding of the arrested person in custody. The prosecution must also establish to the court that there are compelling reasons to believe that “the suspect shall not appear for trial, may interfere with witnesses or the conduct of investigations, or commit an offence while on release; it is necessary to keep the suspect in custody for his own protection, or, where the suspect is a minor, for his welfare; the suspect is serving a custodial sentence; or the suspect, having been arrested in relation to the commission of an offence, has breached a condition for his release.”

As it is evident from the foregoing, the test “reasonable ground to believe” is different when a police officer is arresting a suspect from when the police officer is requesting the court to continue holding the arrested person in custody after his first production in court. The legal threshold when the police are effecting arrest is lower than when the police are seeking to continue holding the arrested person in custody. As earlier held in this Ruling, the Director of Criminal Investigations had “reasonable grounds to believe” that crime was being committed at Kenya Revenue Authority and therefore the arrest of the Applicants was justified in the circumstances. As regard whether the Director of Criminal Investigations had “reasonable grounds to believe” that the Applicants should be detained for a period beyond twenty-four hours as provided under Section 36A(2) of the Criminal Procedure Code, this court holds that the threshold for the court to allow the continued detention of the Applicants was not met. The affidavit sworn in support of the application seeking the continued detention of the Applicants failed to convince the court that:

i. The preliminary evidence gathered linked each applicant to the commission of a crime that necessitates their continued detention in custody.

ii. The information provided in the affidavit was generalized in nature and did not disclose the specific offence that is being investigated in respect of each applicant.

iii. It was evident that the Applicants were arrested before even the investigators had gathered sufficient prima facie evidence to link each applicant to the commission of a specific disclosed offence.

iv. The Applicants constitutional right to be informed at the earliest possible opportunity of the reasons for their arrest and detention under Article 49(1)(a) of the Constitution was breached in that even by the time they were brought to court three days after their arrest, they did not know the reason for their arrest and detention.

v. It was apparent that Director of Criminal Investigations was not sure or certain what offence each applicant may have committed to entitle the police to obtain their arrest and detention. This became obvious when the prosecution in its submission brought out other likely charges that the Applicants may face which were not contained in the initial affidavit that was sworn by the investigator when he presented the initial application before the magistrate’s court seeking the continued detention of the Applicants.

vi. Criminal liability is personal. The Director of Criminal Investigations did not present to court information related to each applicant and why it was necessary for each applicant to be continued to be detained. The prosecution treated the Applicants as one entity instead of separate individuals whose criminal culpability will ultimately be determined individually by the court. This court was not convinced that the reasons that the Director of Criminal Investigations advanced in a bid to secure the continued detention of the Applicants applied to each applicant. It was clear that investigations had not been conducted at the time the application was brought to court on 13th May 2019 in relation to each applicant. That is why the circumstances pertaining to each applicant was not factored in the affidavit in support of the application. An unfortunate example, is where the circumstances of some of the Applicants who were pregnant or breast feeding mothers, was not taken into account. It was evident that information was not obtained in relation to each applicant to determine whether the circumstances of each applicant constituted a flight risk or the likelihood of interference with investigations.

vii. The Director of Criminal Investigations did not take into account the fact that by seeking the detention of each applicant for a period of more than fourteen days it would negatively impact on their employment. The Kenya Revenue Authority Code of Conduct and Ethics (Revised 2018) provides under Clause 6. 1 Employment Offences that shall constitute gross misconduct that shall entitle KRA to summarily dismiss an employee from employment. Clause 6. 1.1. 6 states that if an employee is arrested of a cognizable offence that is punishable by imprisonment and that officer is not released from custody on bail or bond within fourteen days then such employee shall be liable to be summarily dismissed from employment. The ongoing investigations notwithstanding, the Applicants are presumed to be innocent under Article 50(2)(a) of the Constitution under their fair trial constitutional rights. The continued detention of the Applicants for a period of more than fourteen days without their guilt being determined by a court of law cannot constitute a reason for the Applicants to lose their employment. What if the Applicants are eventually not charged or found guilty by a court of law? They would have been prejudiced without due process of the law being followed.

In the premises therefore, this court holds that the Applicants have established a case for this court to call into this court the record and the order issued of the magistrate’s court issued on 13th May 2019 under Article 165(6) of the Constitution and Section 362 of the Criminal Procedure Code with a view to satisfying itself as to the legality and propriety of the same. This court holds that the order issued by the trial magistrate ought to be set aside for the reasons stated above. This court substitutes that order with the following orders:

(a) The earlier order that was issued on 17th May 2019 releasing each applicant on cash bail of Kshs.200,000/- pending the conclusion of investigations shall continue to apply.

(b) Each applicant shall report to the Director of Criminal Investigations at 10. 00 a.m. daily on weekdays until the Director of Criminal Investigations decides to charge or discharge or until further orders of the court.

(c) Each applicant is prohibited from accessing any Kenya Revenue Authority premises until the conclusion of investigations or until further orders of the court. Prohibition of access includes prohibition of access to the Kenya Revenue Authority servers and database.

(d) Each applicant shall be required to attend court should the Director of Criminal Investigations and the Director of Public Prosecutions decide to charge them. The court that shall take plea, shall determine the bond or bail that shall be appropriate for the applicant that shall be charged.

(e) Each applicant is prohibited from getting into contact with any prosecution witnesses or interferes with investigations either directly or indirectly.

(f) This order shall apply to the Applicants in Nairobi HC. Misc. Criminal Application No.256 of 2019.

(g) The case shall be mentioned on 13th June 2019 before this court for further orders.

It is so ordered.

DATED AT NAIROBI THIS 22ND DAY OF MAY 2019

L. KIMARU

JUDGE