Bernard Macharia and his friend Isaac Nderitu were going about their business at Kwa Amos Shopping Centre in Bahati, Nakuru County, when Kabatini location chief assaulted them without provocation.
They reported the assault to Bahati Police Station on March 6, 2013. Police officers promised to take prompt action against the chief. Thereafter, they visited the police station on numerous occasions seeking to know what action had been taken against the administrator but there was no development.
Five months later, seven police officers in plain clothes invaded the house of Mr Macharia claiming that they were looking for a firearm and ammunition he was allegedly keeping. They had no warrants of search or arrest during the August raid.
Two years later, in the afternoon of February 27, 2015, Mr Macharia was arrested from his place of work by Administration Police officers attached to the same chief.
He was arraigned alongside Mr Nderitu to face charges of conspiracy to defeat justice and being in possession of pornographic material.
During trial, the second charge was substituted with the accusation of giving false information to a person employed in the public service.
In July 2016, the trial magistrate acquitted them for lack of police file and witnesses. In the judgment, the magistrate was explicit that the criminal case was framed-up and malicious.
Aggrieved by the unlawful arrest and prosecution, Mr Macharia and Mr Nderitu sued the Inspector-General of Police, Director of Public Prosecutions and the Attorney-General at the High Court for the actions of the police.
Justice Hedwig Ong’udi on March 5, 2025, ruled in their favour by awarding them a cumulative sum of Sh1.9 million in form of damages for infringement of their rights by the State actors.
“No evidence was tendered by the Inspector-General of Police, DPP and the AG on how the decision to arrest and charge the petitioners was arrived at. Further, for the respondents to rely on the chief to avail witnesses to testify against the petitioners yet a complaint for assault had been made against him is really questionable,” said the judge.
The court found that the prosecution of the petitioners was actuated by malice to protect the chief and the criminal trial was instituted without reasonable and probable cause.
This case is among many others touching on police legal missteps through suppression of human rights to personal liberty and dignity, where Kenyans are being awarded money in damages by the courts. The financial burden is falling on the State.
“On quantum of damages the court has to bear in mind the following cardinal principles in the assessment of damages namely: Damages should not be inordinately too high or too low, should be commensurate to the injury suffered and should not be aimed at enriching the victim but should be aimed at trying to restore the victim to the position he was in before the damage was suffered,” said Justice John Mativo, now a judge of the court of appeal, in a famous case law.
The “State of Human Rights Report 2023/24” by the Kenya National Commission on Human Rights, says the commission documented 1,376 arbitrary arrests and 610 cases of injuries from June to November 2024. Incidents of abductions and enforced disappearances emerge from unlawful arrests by police.
Justice Joseph Sergon in 2022 awarded eight activists Sh2.7 million each for malicious prosecution, unlawful arrest and wrongful detention.
Mr Elkana Odembo, Kepta Ombati, Cyprian Orina Nyamwamu, Wilfred Koitamet, Evans Osego Owiti, Paul Ongera Angwenyi, Sheikh Ahmed Ramadhan and Keli Christant Musyoka were arrested by police along City Hall Way in Nairobi.
They were taken to the Central Police Station, and detained. They were then transferred to the Inland Cargo Container Deport Police Station along Mombasa Road.
They were later charged with the offences of creating disturbance with a manner likely to cause a breach of the peace and refusal to be fingerprinted. The criminal proceedings collapsed for lack of witnesses.
“It is trite law that general damages are awarded at the discretion of the court. Damages are awarded to compensate the aggrieved, fairly for the inconveniences accrued as a result of the actions of the defendant,” said Justice Sergon.
He held that it was not in dispute that the arrest and prosecution of the activists was instigated by the police and the prosecution who represented the State in the criminal process.
At the Court of Appeal, in March, this year, six demonstrators were awarded Sh2.5 million each following a finding that police grossly violated their rights while agitating for the multi-party democracy and release of political detainees in 1992. They had pleaded for Sh5 million.
Still in Nairobi, last month, 11 protestors were awarded Sh200,000 each by the High Court as compensation for violation of their rights by the police during the 2024 anti-government demonstrations against tax-hikes.
The court ordered the State to pay the protestors -Joy Awich, Muthoni Matu, Kipngetich Eman, Carolyne Mwikali, Stephen Obunde, Raymond Burgei, Felix Gatobu, Chatherine Njoki Njanja, Tim Kut, Wesley Tome and Imran Kasumba- a total of Sh2.2 million.
They sued the Inspector-General of Police, Attorney-General and former Nairobi police commander Adamson Bungei alleging violation of their rights by police officers deployed to quell the public protests in Nairobi’s central business district.
They were beaten, clobbered, maimed by police while participating in a peaceful march.
They also alleged the State used live bullets on unarmed and peaceful persons, disproportionate force, tear gas and other harmful gaseous substances and spraying water cannons on the protestors.
Justice Bahati Mwamuye declared that police acted beyond their powers and underscored that peaceful protest is a protected right in the Constitution.
In Kabarnet, Baringo county, Mr Augustine Kiptogoch Kipkebut and Ms Hellen Chebor alias Zipporah Keirttany Sogome last week received an award of Sh100,000 each from the High Court.
Justice Rachel Ngetich found that police officers violated their rights by failing to promptly inform them the reasons for arrest.
“The act of apprehending a person without notice/giving information even if it’s for a short period has a far reaching effect on his or her rights to human dignity. I have in view the harm done to the individual and his or her family before the investigations are carried out and a decision is made of charging him or her before a court of law,” declared justice Ngetich.
She stated that being on suspicion does not justify police interfering with the right to liberty and security or confining the individual to a police station or detention facility. The judge said detention, even for a short period, is a violation of rights to human dignity and liberty unlawful arrest.
Ms Chebor was arrested by police at her home and illegally detained for eight hours in a makeshift cell at Kabel Police Post in Muchongoi, Baringo County, on March 26, 2024. Mr Kipkebut was arrested on March 20, 2024 and detained in the same makeshift cell for six hours. They were released without being arraigned in court and without being informed of the reasons for arrest.
They sued two police officers named Simon Karuri and Hussein Hatib attached at Mochongoi police station who did not file response to the petition.
“The petitioner's arbitrary detention and the systemic practice of extorting cash bails from detainees demonstrate the urgent need for judicial intervention to protect citizens' rights and uphold the rule of law,” said Mr Kipkebut’s lawyer in court.
According to Justice Ngetich, even if the police have a right to arrest they must comply with Article 49 of the Constitution and while exercising their statutory powers of arrest the police must act reasonably. They should not be oppressive or punitive, she held.
“The detention of an individual is justified only as a last resort where other less severe measures have been considered and found to be insufficient to safeguard the end or public interest which might require that the person concerned be detained,” said Justice Ngetich.
