The habit of enforcing arbitrary arrests and illegal detentions by the security agencies has put seven police officers at risk of having part of their salaries attached to pay Sh9.5 million in damages to 20 victims.
The fate of chief inspector Henry Kandie (Ongata Rongai police station chief), his deputy David Ndiema, Corporal Eliud Njagi together with constables Zedekiah Nyangoye, Teresiah Wanjue, Simon Namshuruhi and Diana Kirui is in the hands of the Court of Appeal, where they are challenging a ruling by the High Court imposing heavy penalties on them for depriving citizens of their right to liberty.
They were found guilty of illegal arrests, harassment and detention of 20 people, including lawyer Steven Nzaku, at Ongata Rongai police station on June 4, 2016.
On the fateful day at around 9.00pm, the officers arrested 19 people near Tumaini Supermarket in Ongata Rongai, Kajiado County.
THREATS
Two of them — Mohammed Feisal and John Mugwe Ngure — called a lawyer, Mr Nzaku, to come to their aid. On arrival, the lawyer explained his reasons for being there and was instead met by threats of arrest and chased away by Corporal Eliud Njagi.
The rest were detained in the police vehicle until midnight when they were taken to Ongata Rongai police station, booked in and locked up without being informed of the reasons for their arrest.
Mr Nzaku followed the police vehicle to the station where he questioned the officers on the reasons for his clients’ arrest.
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He was arrested and charged with creating disturbance in a police station, while the others petitioners were charged with being idle and disorderly. On June 6, 2016 at 10:35am, they were released unconditionally. Mr Nzaku on the other hand was released on a cash bail of Sh5,000. The 19 petitioners contended that they spent 15 hours in custody while Mr Nzaku spent 12 hours.
They jointly filed a case against the officers for violating their rights. The 19 petitioners argued that their right to representation was infringed upon by the arrest and detention of their advocate.
Justice Reuben Nyakundi ruled in favour of the petitioners on December 20, 2018 and directed the officers to pay Mr Nzaku Sh3 million and Sh3.8 million to the other 19 for general and aggravated damages. He ordered the officers to meet the costs of the case.
UNLAWFUL ARREST
“The unlawful arrest and detention in a police vehicle with no capacity to handle nineteen passengers was an act of human indignity,” said Justice Nyakundi.
He said the treatment accorded to the petitioners was a traumatising experience. The court said the arrest lacked reasonable basis and was thus unlawful.
“Given the circumstances of the Kenyan society where the poor, vulnerable, weak and illiterate find themselves in breach of the law, legal assistance at both pretrial or during trial must be provided to ensure that there is no failure of justice in the process,” stated Justice Nyakundi.
The police officers filed a notice of appeal on December 21, 2018 and obtained a temporary relief after the appellate court suspended the judgement pending hearing and determination of the appeal.
The three-judge bench found that the six officers together with the Attorney-General, the National Police Service Commission and the Director of Public Prosecution had proved that the intended appeal was arguable.
“The respondents have not shown that they would be able to repay the monies set out in the notice to show cause,” said justices Roselyne Nambuye, Martha Koome and Sankale Kantai.
DAMAGES
A key point raised in the draft memorandum of appeal is whether the officers are culpable jointly and as individuals. Another point raised is whether the judge was right to award them damages when they did not testify before the court. “These are arguable points,” said the bench.
State Counsel Robi Mwise Deborah said Justice Nyakundi erred in law and fact by determining that the 20th respondent was arrested without justifiable cause.
Ms Mwise submitted that the intended appeal questions the liability of police officers in arresting the citizens, the basis for granting an award of Sh3 million to Mr Nzaku, and the High Court’s interpretation of various articles of the constitution.
Mr Nzaku, who appeared for himself and for his 19 colleagues, opposed the officers’ application saying the petitioners should not be denied the right to enjoy the fruits of the judgment. He did not address the judges on the petitioners’ ability to repay should the intended appeal succeeds.