Rono v Maalim & another; National Police Service Commission & another (Interested Parties) [2023] KEHC 25609 (KLR) | Unlawful Arrest | Esheria

Rono v Maalim & another; National Police Service Commission & another (Interested Parties) [2023] KEHC 25609 (KLR)

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Rono v Maalim & another; National Police Service Commission & another (Interested Parties) (Petition E001 of 2022) [2023] KEHC 25609 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25609 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Petition E001 of 2022

RB Ngetich, J

November 16, 2023

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 21, 22, 23, 24, OF THE CONSTITUTION, 2010 AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27, 29, 39, 47AND 49 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: THE PERSONS DEPRIVED OF LIBERTY ACT (ACT NO.23 OF 2014) LAWS OF KENYA AND AND IN THE MATTER OF THE NATIONAL POLICE SERVICE ACT (CAP 84) LAWS OF KENYA AND IN THE MATTER OF, INDEPENDENT POLICING OVERSIGHT AUTHORITY ACT NO. 35 OF 2011 LAWS OF KENYA AND IN THE MATTER OF: THE CRIMINAL PROCEDURE CODE (CAP 75) LAWS OF KENYA AND IN THE MATTER OF INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND IN THE MATTER OF UNLAWFUL ARREST, HARRASMENT AND INCERCERATION OF THE PETITIONER HEREIN ON THE NIGHTS & DAYS OF 16TH, 17TH & 18TH JUNE,2022 WITHIN MARIGAT TOWN TO BARINGO COUNTY, BY KNOWN POLICE OFFICERS BASED AT MARIGAT POLICE STATION

Between

Mary Jebet Rono

Petitioner

and

Abdilahi Maalim Chief Inspector OCS Marigat Police Station

1st Respondent

Sammy K. Yetkei Police Constable Marigat Police Station

2nd Respondent

and

National Police Service Commission

Interested Party

Director of Public Prosecutions

Interested Party

Judgment

The Parties 1. The Petitioner who is a citizen of the Republic of Kenya and a resident of Baringo County brings this Petition on her own behalf.

2. The 1st Respondent herein Maalim Abdillahi is a Chief inspector of Police and Officer Commanding Station (OCS) Marigat Police Station, his functions, powers, obligations and rights are spelt out under Part VII of the National Police Service (Act Cap. 84) Laws of Kenya.

3. The 2nd Respondent herein Sammy Kemboi Yetkei, is a Police Constable in the Kenya National Police Services currently based at Marigat Police Station, his functions, powers, obligations and rights are spelt out under Part VII of the National Police Service (Act Cap. 84) Laws of Kenya.

4. The 1st Interested Party herein, National Police Service Commission, is a public body established under Article 246 of the Constitution of Kenya whose mandate includes but not limited to observing due process, exercise disciplinary control over and removes persons holding or acting in offices within the National Police Service.

5. The 2nd Interested Party herein, The Director of Public Prosecutions, whose mandate includes but not limited to institute and prosecute criminal cases before any court of law in the Republic of Kenya.

The Legal Foundations of the Petition 6. The Petition herein is founded on the preamble to the Constitution, Article 1(1), Article 2(1), Article 2(4), Article 2(5) and (6), Article 3, Article 10, Article 19, Article 20, Article 21, Article 24, Article 27, Article 28, Article 29, Article 39, Article 48, Article 49(1) and (2), Article 50(2), Article 51(1), Article 258(1) and Article 259 of the Constitution of Kenya 2010.

7. The Petitioner states that this Honourable court has jurisdiction to hear and determine this matter by virtue of the provisions of Articles 22(1), 258 (1), 23, 165(3) (b) and (d) (ii) of the Constitution of Kenya 2010.

The Petitioner’s Case 8. The Petitioner avers that on the evening of 16th June, 2022 before the arrest, she had gone to the Marigat Police Station with intention of getting her statement recorded by the police officers in the station over theft of money at Mpesa shop she had been employed to work in which took place on a Sunday morning of the 12th June, 2022, and she had reported the same to the Police Station on 13th June, 2022 and was captured under OB 18/13/06/2022.

9. That upon reaching the station on the said evening of Thursday 16th June, 2022 with the intention of recording her statement at around 5:00PM, the officers present in the office requested her to go back the next day morning citing exhaustion. She respectively obliged and returned back to the Mpesa shop in the town.

10. That while at the vicinity of the Mpesa shop in the town, a person approached her and asked her whether she was Mary Jebet. She answered in the affirmative. The person introduced himself as a police officer and asked her to go and record statement in the police station. She told him she had been told to go back the next day. The officer introduced himself as the one assigned to investigate the case and asked her to accompany him to the police station. She obliged and accompanied the office at around 6:30 PM.

11. She states that at the station, the officer was not in any hurry to record her statement and when she asked the officer why they are not recording the statement, the officer told her to wait a bit. And while waiting, the officer was joined by the husband of the lady who had employed her at Mpesa shop, and they kept on talking before the officer told the Petitioner to sit down on a stone near report office and wait for him to come back, and they left the station with the husband of her employer at around 8:30PM.

12. She states that she remained seated from around 8:30 PM until after past mid night when the officer re-surfaced and told the Petitioner to get into the Police Cell. The Petitioner was taken aback by the conduct of the police officer Sammy K. Yetkei and on asking him why she was now being booked into the cell yet she was coming to record her statement, she was told her employer had told the police to place her in cell.

13. That on Friday 17th June,2022 at around 9:00PM at night, a lawyer who was brought by a friend of hers paid the Petitioner a visit with the said friend at the Police station, and the lawyer asked her whether reason for arrest and right to remain silent were explained to her. She said no explanation was given to her at time of arrest.

14. She states that she remained in the Police station Cell until Saturday the 18th June, 2022, when her relatives were invited to the station and she was made under the directions of the Respondents to enter into a negotiation agreement with her employer over how the lost money would be repaid by the Petitioner and her relatives.

15. That under duress and with the wish of wanting not to spent any other day in the police cells, and for the love of going back to her 2 young toddler children, the Petitioner succumbed to the negotiation agreements to pay to her employer Kshs. 30,000. 00 by the 10th July, 2022, and the balance to be spread over a period of time and she was released from cell.

16. She accused police from Marigat Police station of arbitrarily arresting citizens specially on Fridays and Saturdays, solely with the intention of exploiting the 24 hours rule of keeping arrestees in the police cells for long hours, with the sole purpose and intention of subjecting the arrestees part with heavy police cash bails/bonds, and without the intention of arraigning them in a court of law; and upon being released on bond, they are asked to go back on Monday and Wednesday for review of their cases and upon them coming back on the said days, they are coerced into parting with the cash bail for exchange of their freedom and this can be proved by audit of the daily Occurrences Book at the station especially on the aforementioned days.

17. She stated the Respondents who are bestowed with the noble duty of maintaining peace and order for tranquility among citizens and besides being paid salary by the citizens through taxes, are callously perpetrating illegal actions and unless restrained by this Honorable Court from so doing, they are determined to continue with the breach of the Constitutional Rights of the Petitioner herein and the Public at large.

18. That on the 29th June, 2022, the Petitioner through the firm of Boiwo & Co. Advocates lodged a complaint with the Respondents through their Sub-County Police Commander, and copied to the 1st interested party through the Inspector General and the 2nd Interested Party as well as the Respondents noting her grievances and the intended action.

19. She contends that by the Respondents deliberate actions of arbitrarily arresting, constructively detaining her at the police station compound at night and incarcerating her in the police Cells in Marigat Police Station for 3 days, was in breach of her right to be brought before a Magistrate within 24 hours of being arrested and freedom of movement. That the Petitioner had, among others, the following legitimate expectations; that the Respondents would not act contrary to the provisions of the Constitution of Kenya, 2010, the Persons Deprived of Liberty Act, 2014 Laws of Kenya, the National Police Service Act (Cap. 84) Laws of Kenya, the Criminal Procedure Code (Cap. 75) laws of Kenya, Universal Declaration of Human Rights, international Covenant on Civil & Political Rights amongst other related Laws in addition to the Principals of Public Policy and rules of natural justice. That the Respondents would exercise their powers strictly in compliance with the provisions of Articles 10, 49 and 51 of the Constitution before acting in the manners they did. That the Respondents would treat all citizens and people within the Republic of Kenya fairly and not abuse the rights guaranteed under the Constitution of Kenya.

20. That, on account of the foregoing actions and omissions on the part of the Respondents, they deprived, threatened and or interfered with the Petitioner's freedom and rights guaranteed under Articles 20 (1) and (2), 24(1), 25(a) & (c), 29, 39(1), 49, 50 (1), 51 of the Constitution of Kenya, 2010; and discriminated against the Petitioner contrary to Article 27 of the Constitution of Kenya, 2010, violated the Petitioners' right to an administrative action that is efficient, lawful, reasonable and procedurally fair guaranteed under Article 47 of Constitution of Kenya 2010.

21. That the aforementioned acts and the consequences arising from the Respondents negates the rights and values as enshrined in Chapter IV of the Constitution under which the Petitioner is entitled to protection.

22. The Petitioner pray that this Honourable Court be pleased to declare the impugned acts and/or omissions above cited unconstitutional and grant the following declarations and orders of redress:i.A Declaration that the conducts of the Respondents are contrary to and inconsistent with the provisions of Articles 10 of the Constitution of Kenya, 2010. ii.A Declaration that the Respondents violated the Constitutional rights of the Petitioner and in particular Articles 20 (1) and (2), 24 (1), 25 (a) & (c), 27 (4), 29, 39, 47, 49, 50 (1) and 51 of the Constitution of Kenya, 2010. iii.A Declaration that no person should be held in remand or custody for any offence for more than 24 hours before being brought before a Magistrate during weekdays and any such incarceration beyond the 24 hours in a working weekday day is Unconstitutional.iv.An order that the arrest and incarceration of the Petitioner for a period of 3 days by the Respondents from Thursday the 16th June, 2022 to the 18th June, 2022 and failing to produce her in court within 24 hours upon arrest and yet the next day of Friday the 17th June, 2022 was a working week day where the courts are in session was unconstitutional and therefore the Petitioner be set free forthwith.v.An order that the arrest, constructive detention and incarceration of the Petitioner for a period of 3 days from Thursday 16th June, 2022 to Saturday 18th June, 2022 by the Respondents was unconstitutional.vi.An order for adequate compensation for damages for unlawful arrest, constructive detention and incarceration in (c), (d) and (e) above for deprivation of the constitutional right to freedom of movement and her liberty by the Respondents.vii.Any other or further reliefs that this Honourable Court shall deem fit by dint of Article 23(3) of the Constitution of Kenya, 2010 and are just to grant in the circumstances.viii.Costs of this Petition.

The Respondents’ Case 23. In response, the respondent filed a replying affidavit in court on the 14th February, 2023 sworn by the 2nd Respondent No. 252825 PC Sammy Yetkei on his behalf and on behalf of the 1st Respondent.

24. He avers that he is an investigator at Marigat police station and on the 13th day of June 2022, a report was made by one Mary Kibet Rono (herein after referred to as the suspect) in respect of a case of stealing contrary to section 268(1) as read with section 275 of the penal code vide OB No. 18/13/06/2022 at 0915 Hours.

25. That it was reported that the petitioner was in deed employed by complainant in an Mpesa agent situated at Marigat township and the petitioner gave out cash withdrawal of no transaction Ksh.90,000/=to the person in question.

26. The officer states that he took up the matter as an investigating officer and commenced investigations and on 14th June 2022 at around 1350hours, the complainant approached their office and lodged a complaint on the same matter and upon inquiring, the officer tried to call the petitioner through her mobile phone but he found it switched off.

27. That upon interrogating the complainant she revealed that on 16/06/2022 at around 1845 hours she had communicated with the petitioner and told her that she needs half of her money back before anything and on hearing that, the petitioner threatened to commit suicide.

28. That on 16th June,2022 at around 0830 hours he made some rounds within Marigat township, met the petitioner and requested her to accompany him to the station so that she could make a statement concerning the complaint, she refused to be carried by the officer’s motorcycle but footed escaping her employer since she had been told to refund half of the money unless otherwise and the petitioner threatened to commit suicide.

29. The officer states that he decided to allow petitioner cool down and discuss with her family and later on 17/06/2022at around 0024hours he placed her in custody vide OB NO. 02/17/6/2022 at around 0024 hours.

30. That on 18th June,2022 the petitioner was released on free bond vide OB NO.23/18/06/2022 at 1505 Hours after the complainant and the family of the petitioner agreed since the complainant was in an out of court settlement at the time of investigation. Complainant main goal was to recover her money.

31. He states that at the material time the petitioner was not in their custody upon releasing her on 18/06/2022.

32. He further averred that on 29th June 2022 the petitioner through her lawyer Boiwo &advocate company wrote a letter alleging the petitioner has been unlawful arrested and her rights being violated which gave rise to an inquest No .2/2022 opened and file forwarded to DCI Marigat vide their letter C/GEN/4/Vol.1/04/2022 dated 20th June,2022 and they responded that the petitioner’s rights were not violated vide CID/SEC/3/2/6/VOl.1/12 dated 14th July 2022. He urged court to dismiss the petition for lack of merit.

33. Further in response to the Petition, on the 6th March, 2023, the 1st Interested party filed grounds of opposition to the petition on the following grounds:-i.That the 1st respondent herein is a constitutional commission whose creation and mandate is clearly spelt out under Article 246 (3) of the constitution of Kenya specifically related to the Human Resource Management of members of the National Police Service.ii.That the National Police Service is a recognized constitutional entity under Article 244 of the constitutional and which is headed by the office of the inspector General of Police.iii.That the petition herein is primarily based on events relating to the use of the powers of arrest and investigating by police officers, which powers are subject to the independent command of office of the inspector General of police as spelt out in Article 245(2)(b).iv.That section 10(g) of the National Police Service Commission Act, 30 of 2011 expressly bars the commission from conducting investigation of a criminal nature.v.That the petitioner herein has not demonstrated that the 1st interested party will aid the court in arriving at a just conclusion or carry out any orders as prayed in the petition.vi.That the 1st interested party therefore prays to be expunged from the proceedings of the petition.

Petitioner’s Submissions 34. The Petition proceeded by way of written submissions, the Petitioner filed submission dated 15th May,2023 where they identify four issues for determination being:-i.Whether or not there was unlawful arrest.ii.Whether the petitioner’s arrest and the 3 day detention period was in violation of the petitioners right under Article 49(1)(f) of the constitution.iii.Whether the petitioners is deserving of damage for unlawful arrest, constructive detention and incarceration.iv.Whether the prayers as sought in the petition are tenable.

35. The Petitioner submits that the importance of the protection of personal liberty was discussed in the case of Michael Rotich v Republic [2016] eKLR where the court observed as follows:-“Courts are under a constitutional duty to jealously protect this rights to liberty and freedom. The right can only be curtailed in circumstance 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 page12:“….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 regards 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.”

36. In submitting on whether the petitioner’s arrest and detention was in violation of her rights, counsel begin by analyzing whether the respondent had acted within the confines of the law in conducting the arrest and detention of the petitioner.

37. Counsel submit that the petitioner admits in her petition that on the 16th day of June 2022, she was arrested and remanded at Marigat police station on allegation of theft of money at an MPESA shop she had been employed to work in. That allegedly, the said theft had taken place on a Sunday morning of 12th June, 2022 and restated that she had earlier on gone to Marigat Police Station to report the theft and submit that on the evening of Thursday 16th June 2022, the petitioner was visiting the station with the intent of recording her statement to build up on the case she had initially reported and as pleaded, the officers present at the time turned her back and advised that she visit the station the following day citing exhaustion.

38. Counsel submits that although the petitioner was booked and remanded at past midnight on 16th June 2022 that is, at exactly 00:24 hours vide OB NO. 02/17/6/2022 she was not presented before court within 24 hours after being arrested on Thursday at around 8:00pm on 16th June 2022 contrary to article 49(1)(f) of the constitution.

39. That the import of the provision is to protect arrested person against unnecessarily long detentions by the police. Arrested person are 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 circumstance 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 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 shall 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”.

40. That the court in Salim Kofia chivui v. Resident Magistrate Butali Law Court &Another [2012] eKLR, 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 case and 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.”

41. Counsel argue that there was no reason availed by the respondent why the petitioner was not arraigned in court within the 24 hours or why they failed to seek an order for continued detention from the court while conducting their investigation in accordance to Article 49(1)(g) of the constitution.

42. He further submits that Article 25 of the constitution guarantee freedom from torture and cruel, inhuman or degrading treatment or punishment and the respondent cannot rely on section 36 of the criminal procedure code to shield their acts which had been rendered unlawful by virtue of Article 49(2) and relied on the case of Re s vs Walters &Another [south African Constitutional Court] (CCT28/01/) [2002] ZACC6.

43. Further that the Respondent failed to demonstrate that they had followed the procedure under the Kenya National Police Service Act, No. 11A of 2011 and invited the court to find that the petitioner’s rights under Article 49 (1)(f) of the constitution were breached by the police officers when they failed to arraign her before the court within the requisite 24 hour period.

44. As to whether the petitioner is deserving of damages for unlawful arrest, constructive detention and incarceration, they submit that Article 23(3)(f) of the constitution enjoins the court to order for adequate compensation to the petitioner on finding that the respondents denied, violated or infringed her constitutional rights and damages for unlawful arrest and detention should be exemplary and punitive in order to deter would be offenders; and cited the case of Mohamed Feisal & others v Henry Kandie, Chief inspector of police, OCS, Ongata Rongai Police Station & 7 others, National Police Service Commission & another (interested party) [2018] eKLR where the court observed that:-“The petitioner only needs prove that the arrest or detention was illegal which they did in this case. They do not have to prove that the respondent had intention to act illegally or to cause harm. In order to establish the lawfulness of an arrest without a warrant, the onus of proof resides with the respondents to show probable cause or reasonable suspicion. In exercising the power to arrest, he must act as an ordinary honest man would act, on suspicion, which have a reasonable basis, and not merely on wild suspicion.”

45. And in assessing damages counsel invited this court to be guided by the principles set out in Gitobu Imanyara & 2 another v Attorney General. in the Gitobu Imanyara case, the court observed as follows:‘The relevant principle applicable to award of damage for constitutional violations under the constitutional was explained exhaustively by the privy council in the famous case of Siewchand Ramanoop v The AG of T&T. pc Appeal No 13of 2004. It was held that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense.Per Lord Nicholls at Paragraphs 18&19:When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of violation, but is most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damage will be often useful guide in assessing the amount of this compensation, but this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law.An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasize the importance of the constitutional rights and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award.” Redress “In section 14 is apt to encompass such an award if the court considers it is required having regard to all circumstances. Although such an award. where called for, is likely in most cases to cover much the same ground in financial term as would an award by way of punishment in the strict sense of retribution, punishment in the letter sense is not its object. accordingly, the expressions “punitive damage “or “exemplary damage “are better avoided as descriptions of this type of additional award.”

46. Counsel further submit that the police in the station did not promptly attend to the petitioner; that the police officer by the name Sammy K.Yetkei ,the 2nd respondent herein let the petitioner remain in the police station from 8. 30 p.m to past midnight without her being processed or her statement being recorded just to resurface at past midnight rough up the petitioner and now booked her into the cell. That apparently, he was buying time to reach midnight when the new day of Friday date starts with the sole purpose of detaining the petitioner through the weekend days of Saturday and Sunday when courts are not sitting hence circumventing the 24 hour rule; and the respondents did not explain where they had gone to arrest the petitioner and bring her to the police station at past midnight at 00:24 hours. That the petitioner was constructively arrested as from 7:pm on Thursday 16th June 2022 when the 2nd respondent approached her at the Mpesa verenda shop and told her to accompany her to the police station to record her statement.

47. Further the petitioner pleads that the 1st respondent intimated to her that he was under strict instruction (from his boss, the 1st respondent) to let her remain in custody for as long as he could in order to force he enter into agreeable negotiation with the complainant the Mpesa shop owner. The intention of the respondent in detaining the petitioner was therefore not normal police purpose and reason of arraigning the suspect in court but to procure out of court settlement with the complaint.

48. Counsel submit that the petitioner was held in remand/custody on a weekday for more than 24 hours without being brought to court and pray that the court finds that the petitioner rights were violated and award damages.

49. On whether the prayers as sought in the petition are tenable, counsel urge the court to interpret the constitution in a manner that favors the petitioner as it is enjoined to do so under Article 20 of the constitution, and further submit that the court has the jurisdiction to grant the orders sought by the petitioner and any other order it deems merited in light of the various breaches of the law by the respondents. In support of this submission, counsel cited the case of Lin Wen jie&2 Other vs Cabinet secretary, interior and coordination of the national government &3 Others [2017] eKLR.

50. On who should bear the costs of the petition, counsel submit that the respondents are trained using taxpayers money to be professional in the dispensation of their duties and as such their misdeeds ought not to burden the taxpayer further and any costs and damages should be borne by the respondents from their personal funds.

The 1st Interested Party’s Submissions 51. The 1st interested party submitted that the following issues for determination would aid the Honorable Court in arriving at a just determination:a.whether the respondents are properly named as respondents in the petitionb.whether the respondent’s violated the petitioner’s constitutional rights as alleged or at all;c.whether the petitioner is entitled to the orders sought.

52. On whether the respondents are properly named as respondents in the petition, they argue that the 1st interested party herein is a constitutional commission whose establishment and mandate is clear spelt out under article 246(3) of the constitution of Kenya specifically related to the Human Resource Management of members of the National Police Service.

53. That Article 246 of the Constitution of Kenya mandates the Commission to recruit and appoint persons to hold or act in office in the service, confirm appointment and determine promotions and transfer within the National Police Service, observe due process, exercise disciplinary control over and remove persons holding or acting in offices within the service and perform any other functions prescribed by National Legislation and the Respondents are employees of the 1st interested party identifiable as police officers under section 2(1) of the national police service act.

54. That the National Police Service is a recognized constitutional entity under article 244 of the Constitution which is headed by the office of the inspector general of police and that the petition herein is primarily based on event relating to the use of the powers of the arrest and investigations by police officers, which powers are subject to the independent command of office of the inspector general of police as spelt out in article 245 (2)(b).

55. On whether the 1st Interested Party violated the petitioner’s constitutional rights as alleged or at all, they argue that the 1st interested party are not respondents in the petition nor sued under vicarious liability as employers as outlined in Article 246 of the constitution of Kenya from which the 1st interested party draws its mandate.

56. That their mandate is expressly barred by section 10(g)(i) of the National Police Service Commission Act, 30 of 2011 from conducting investigations of a criminal nature. That their submissions hereunder will therefore be limited to the rightness of the petition as field against the respondents.

57. That the issues in question however are in relation to the respondents in which the petitioner herein is challenging the use of their powers of arrest and investigations of criminal offences under section 49 and 58 of the National Police Service Act No. 11A of 2011.

58. The 1st interested party argues that section 66(1) of the National Police Service Act No. 11A of 2011 protects Police Officers from personal liability by providing that:-“No matter or thing done by a member, employee or agent of the service shall, if the matter or thing is done in good faith for the performance and execution of the functions, powers or duties of the service, render the officer, employee or agent personally liable to any action, claim or demand whatsoever “

59. That it is the 1st interested party’s assertion that the respondents are improperly named as respondents herein by virtue of section 66(2) of the National Police Service Act No.11A 2011 which states that:“Subsection (1) shall not preclude a person from bringing legal proceedings against the inspector general in respect of an act or omission of the kind referred to in the subsection if the person can satisfy the court that the police officer or other person would, but for that subsection, have incurred liability for the act or omission.’

60. They place reliance in the case of Kizito M. Lubano v KEMRI Board of Management &8 Others [2015] eKLR where it was held as follows;“The question should be whether the current respondent are properly joined herein and if so, whether such presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the suit, there must be a demonstration by the petitioner that there is a direct and real interest in the relief sought against the listed Respondents and thus necessary parties herein..”

61. That it is the 1st interested party’s submission that the necessary party herein has not been named as a Respondent and therefore the 1st interested party urges the court to dismiss the petition as filed herein.

62. On whether the petitioner is entitled to the orders sought, the 1st interested party submits that the petitioner herein has not demonstrated how the 1st interested party or the respondent as sued in their personal capacity will aid the court in arriving at a just conclusion or carry out any orders as prayed in the petition.

63. They submit that the petitioner’s conduct vis a vis use of police powers should be evaluated in light of the petitioner who has in her pleadings and supporting affidavit date 18th July, 2022 indicated:i.She was arrested in respect to loss of ksh.90,000/-in an mpesa shop where she was employed in (paragraph 3)ii.She recorded her statement at the police station (paragraph 4)iii.An Occurrence book number was booked in relation to her role in the loss (paragraph 3)iv.She was allowed a visit by a lawyer while in police custody (paragraph 9)v.Negotiated an out-court settlement with the complainants (paragraph 11)vi.She is dismissive of the aspect on whether she was denied bail during the time of arrest by stating “… whether she or he is released on police or cash bail or bond should never..”(paragraph 16)

64. The 1st interested party submits that the petitioner did not name the right party in the petition who would adduce evidence in response to the averments raised in the petition to assist the court in arriving at a just determination in the matter.

65. The 1st interested party submits that award of costs is at the discretion of the court to grant or not to grant costs and urged this court to dismiss this petition with no orders as to costs.

Submissions by the 2nd Interested Party 66. The 2nd Interested party the Director of public prosecutions submit that the petitioner in her supporting affidavit dated 18th July, 2022 avers that while working at Mpesa shop in Marigat CBD township in plot No.44 stall No.1, a client known to her went to the shop and asked to withdraw withdrawal Kshs.90, 000. 00, but disappeared without withdrawing the amount. She further alleges that she reported the same at Marigat police station the next day vide OB NO.18/13/06/2022 and on the evening of 16th of June, 2022 at around 5. 30pm, she went to Marigat Police Station to record her statement over alleged theft in the Mpesa shop. She was however requested by officer’s present then, at the station to go back the next day to record statement. She was later asked to accompany the investigating officer to the police station.

67. That the petitioner contends that her arrest and detention in police custody was without any legal basis and or justifiable cause or reason. In brief she alleges that her constitutional rights were grossly violated and she is therefore seeking a declaration by this court that her constitutional rights were violated.

68. The 2nd Interested party submit that there was no reason for the petitioner to enjoin the 2nd interested party in this application and 2nd interested was therefore wrongly enjoined in the application. That at the time the petitioner was arrested and detained in police custody, the 2nd interested party had no information or knowledge of the petitioner's arrest and there is therefore no nexus between the Prosecution and the Police concerning the petitioners' arrest. Secondly, the case against the petitioner is still pending in court awaiting hearing and determination; and concluded by submitting that there is no legal basis for granting the orders sought by the petitioner and prayed for the petition to be dismissed entirely as same is pre-mature.

Analysis and Determination 69. I have perused and considered pleadings herein together with submissions and wish to consider the following: -i.whether the Petitioner has proved in a balance of probability that his constitutional rights were violatedii.whether he is entitled to the orders sought.

70. 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.”

71. It is not in dispute that on the 13th day of June, 2022, the Petitioner lodged a report at Marigat police station over money that was lost in an Mpesa shop she was working in. The investigation officer avers in his replying affidavit that on the 13th day of June 2022 a report was made by one, Mary Kibet Rono in respect of a case of stealing contrary to section 268(1) as read with section 275 of the penal code vide OB No. 18/13/06/2022 AT 0915 Hours.

72. It is not in dispute that the petitioner was employed at the Mpesa shop in Marigat township and that she gave out Kshs 90,000 with no withdrawal transaction to a person whom she stated was well known to her. From the averments, the investigating officer took over the matter on 14th June 2022 at around 1350hours the complainant approached their office and lodged in a complain on the same matter and upon inquiring, the officer tried to call the petitioner through her mobile phone but he found it switched off.

73. On 16th June,2022 at around 0830 hours he made some rounds within Marigat township met the petitioner and requested her to accompany him to the station so that she makes a statement.

74. The Investigating Officer averred that when the petitioner was asked to refund half of the money, she threatened to commit suicide and he decided to let her cool down petitioner and also have time discuss with her family and on 17/06/2022at around 0024hours he placed her in custody vide OB No. 02/17/6/2022 at around 0024 hours.

75. The Investigating Officer stated that on 18th June,2022 the petitioner was released on free bond vide OB No.23/18/06/2022 at 1505 Hours after the complainant and the family of the petitioner agreed since the complainant was in an out of court settlement at the time of investigation. These facts have not been disputed same for the petitioner stating that she was arrested on 16th June 2022 and placed in custody the same day

76. 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”

77. 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.”

78. 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.”

79. The petitioner’s claim is that her rights and fundamental freedoms were violated as she was detained in police custody for more than 24 hours contrary to the provisions of the Constitution. The Constitution protects the rights of the arrested persons under Article 49 of the Constitution and a claim by anyone that his rights have been violated by those responsible for protecting his life and property, is a grave and serious indictment that a court that is obligated to enforce and protect rights and fundamental freedoms should not take lightly.

80. It is, however, incumbent upon the person making the claim of illegal detention to establish the claim to the satisfaction of the court, if the court is to remedy that violation. Under Article 165(3) (b) and (d) (ii) of the Constitution the court has jurisdiction to determine whether rights or fundamental freedom in the Bill of Rights have been denied, violated, or infringed. And as this court observed in Miguna Miguna v Dr. Fredrick Okengo Matiang’í, Cabinet Secretary for Ministry of Interior and Coordination of National Government & 7 others [2018] eKLR, where the court stated that it must be everyone’s obligation to uphold the Constitution, respect, enhance and protect human rights and fundamental freedoms because they are the foundation of the rule of law and good governance.

81. The Investigation Officer has annexed an OB Extract which indicates that indeed the petitioner was booked to the cells on the 17th of June,2022 at around 0024 Hours and released on the 18th June,2022 vide OB No.23/18/06/2022. There is also a reply from the DCI confirming that. In view of the fact that the respondents denied her claim through depositions in their replying affidavit, the burden of proving that she was arrested on the 16th June,2022 and was in the station from 5:00 P.m lay on her. Sections 107 through 109 of the Evidence Act places the burden of proof on the petitioner to prove his claim on a balance of probabilities.

82. In view of the above, the petitioner had the burden to prove on a balance of probability, that she was detained for more than 24 hours as alleged by the respondents or their juniors which was in violation of her rights and fundamental freedoms.

83. The petitioner failed to discharge the burden placed on her by the law to warrant this court to return a favorable verdict that the respondents or those acting under them unlawfully detained her and as a consequence, violated her rights and fundamental freedoms.

84. On whether her arrest was unlawful and that the intention to prosecute him was not made in good faith, there is no doubt that a complaint was lodged and it was within the mandate of the police to investigate and charge her if evidence was established but the petitioner was not charged due to out of court settlement reached with complainant.

85. Article 49(1)(f) of the Constitution provides that an arrested person has the right to be brought before court as soon as reasonably possible but not later than twenty-four hours after being arrested. From averments and annexures by investigating officer, the petitioner was released before the constitutional timeline lapsed.

86. On joinder of the 2nd Interested party, it is evident that the process being challenged by the petitioner did not reach the 2nd Interested party. The petitioner is challenging her arrest and detention by the 1st Interested party. The role of the 2nd interested party has not been demonstrated. There is therefore misjoinder of the

87. In view of the above, the petitioner has not demonstrated reason for grant of prayers sought.

88. Final Orders: -1. This petition is hereby dismissed.2. Costs to the Respondents and Interested Parties.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 16TH DAY OF NOVEMBER 2023. …………………………………RACHEL NGETICHJUDGEIn the presence of:Mr. Karanja – Court Assistant.Ms Boiwo holding brief for Mr. F.K. Boiwo for Petitioner.Ms Rwenji for 1st Interested Party.