Untitled

M W K v another v Attorney General & 3 others [2017] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI, MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. 347 OF 2015
In the matter of The Constitution of The Republic of Kenya
and
In the matter of Articles 2, 3, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 48, 49, 50 and 53, 159 of the
Constitution of Kenya 2010
and
In the matter of contravention of Article 27, 28, 29, 31, 41, 43, 48 & 49 of the Constitution of the
Republic of Kenya
and
In the matter of the Preamble and Articles 7, 9, 10, 16, 17, 23, 24, 25, 26 International Covenant on
Civil and Political Rights
and
In the matter of the Preamble, Article 1, 2, 3, 5, 6, 7, 8, 12, 13, 26 of the Universal Declaration of
Human Rights
BETWEEN
M W K........................................................................................................................1stPetitioner
The CRADLE-the Children Foundation..............................................................2ndPetitioner
versus
The Attorney General.....…………...……………………………….................1stRespondent
The Inspector General of Police.....................................................................2ndRespondent
Director of Public Prosecutions.....................................................................3rdRespondent
http://www.kenyalaw.org - Page 1/27

I.P. Inspector Agnes Magiri..............................................................................4thRespondent
Police Constable Anne Ogindo.......................................................................5thRespondent
and
Independent Medical Lega Unit (IMLU)......................................................Interested Party
and
The Redress Trust............................................................................................Amicus Curiae
JUDGMENT
Introduction
1. On 5thAugust 2015 the Media was awash with news of a Matatu that was intercepted by traffic Police
officers along Karartina/Nairobi Road carrying students. It was playing loud music, the students were
allegedly intoxicated, it was alleged some were engaging in sex in the vehicle. The police were acting
on a tip off from members of the public.
2 Upon entering the Matatu, the Police noted it was overcrowded, it smelt alcohol, and had pieces of
used cannabis sativa were scattered on its floor. The Police commandeered the vehicle to the Police
Post where they searched the students. They recovered Cannabis sativa hidden in the under garments
of the first Petitioner. She was detained at the Police Station over night. She was charged in court the
following day with the offence of being in possession of cannabis sativa. She pleaded guilty and was
convicted. She was remanded at Embu GK Prison for five days and was sentenced to 18 months
Probation.
3. But what caught the attention of the public and Human Rights crusaders to the extent that it
overshadowed the seriousness of the offence and the conduct of the students is the posting and wide
circulation of nude images of the first Petitioner in the press and the social media. The images exposed
her private parts and breasts and sachets of cannabis sativa allegedly hidden under her panties and bra.
4. The publication of her nude images raised fundamental questions such as:- the conduct of the police
officers during the search, whether the search was conducted in conformity with the law, whether her
Rights to privacy, dignity and not to be subjected to degrading treatment were violated, whether her
rights as an arrested person were respected, whether her rights as a child in conflict with the law were
respected, where and how the search was conducted, who took the images, who posted the images in
the social media, whether the search conducted in public or in private. More significant is the fact that
she was then aged 18 years and therefore a child within the meaning of the definition of a child under
Article 260 of the Constitution and the Children's Act.[1] The questions raised in this case touch on
constitutionally guaranteed rights.
5. The considerable interest generated by facts and circumstances of this case is also evidenced by the
number of organizations that successfully applied to be enjoined in this case, among them, the second
Petitioner, the interested Party and the Amicus Curiae.
The Parties

6. The first Petitioner was then 18 years old and a form student. She brings this Petition seeking to
vindicate her constitutional rights not to be subjected to degrading and inhuman treatment, to safe guard
her right to privacy, rights of an arrested person and fair process and compensation for the violations.
The second Petitioner is a non-partisan, non profit making non- governmental organization committed to
the protection and promotion of the Rights of the child through representation, advocacy and reform.
7. The first Respondent is the Hon. Attorney General, the principal legal adviser to the Government
constitutionally tasked with the responsibility of representing the Government in court,[2]while the second
Respondent is the Inspector General of Police. The third Respondent is the DPP charged with inter alia
the constitutional mandate of directing criminal investigations and exercising powers of state
prosecutions.[3]
8. The fourth and fifth Respondents were at the material time traffic police officers involved in arresting,
searching and prosecution of the first Petitioner. The interested party is a governance, health and
Human rights non-profit organization whose vision is a just world free from torture. Its functions include
monitoring governance adherence to human rights obligations and advocate for policy, legal and
institutional reforms.
9. The Amicus Curiae is an international human rights organizations whose mandate includes assisting
survivors of torture, seeking justice and other forms of reparation. It has experience in intervening
before national, regional and international courts and tribunals.
10. At this point it is apposite that I briefly examine the facts of this case.
The Petitioners' case
11. The first Petitioner was among 37 students travelling to Nairobi from Karatina in the Matatu. The
students were alleged to have been intoxicated, smoking bhang and engaging in sex in the vehicle which
was playing loud music.
She avers that the Police stopped vehicle and entered. At this point a male student gave her some
folded substance to hide for him. At the Police Patrol Base, the Police stripped her blouse, lifted her skirt,
and pulled her under wear exposing her private parts in breach of her privacy. She stated that she was
indecently searched and was not promptly told of the reasons for her arrest. She avers that the fourth
and fifth respondents and or their subordinates and or third parties were allowed to take her nude
pictures. She was arraigned in court[4] for possessing Cannabis Sativa,[5] and was convicted on her
own plea of guilty. To her, the conviction was unlawful and she invites this court to quash it.
13. She avers that posting her nude images in the media caused her psychological torture,
embarrassment, seclusion, poor concentration in studies, public ridicule, deprivation of privacy and fears
that her photographs may be used for pornography.
First Respondents' Replying Affidavit
14. On behalf of the Hon. Attorney General is the Replying Affidavit of L.K. Kieng, the Regional Police
Co-ordinator, Central Province. He avers that the Petitioner was charged with the offence of being in
possession of cannabis sativa, and was convicted on her own plea of guilty. He avers that unknown
people took her photographs and posted them on the internet and investigations exonerated the fourth
Respondent from wrong doing.

Second and Third Respondents Response to the Petition
15. Spt. Susan Kirori led the team that inquired the releasing of the images to the media and that the
inquiry cleared the fourth Respondent of any wrong doing. In her view, the search was properly
conducted and the first Petitioner was found in possession of the Bhang.
16. However, the facts as disclosed in the above two affidavits differ sharply with the contents of the
written submissions made by counsel for the DPP, Mr. Ashimosi discussed later in this judgement
casting doubts on the veracity of the above affidavits.
Fourth Respondents Response to the Petition
17. The Fourth Respondent, is traffic Police officer who was in charge of the officers who arrested the
vehicle and the search. Her conduct was the subject of the inquiry referred to above which allegedly
cleared her of any wrong doing. However, as discussed below, an investigation done by the DPP found
her conduct breached the law putting the veracity of her affidavit into question.
First Petitioners oral evidence
18. In her oral evidence the first Petitioner narrated how she boarded the vehicle at Karatina. The vehicle
picked more students on the way. She admits there was loud music which attracted attention from
members of the public. A principal of a Secondary School demanded that students from her school alight
from the bus, but they declined stating that they had paid fare to Nairobi. On the way they were stopped
by the Police and directed to the police station. She narrated how another student who sat next to her
gave her something to hide and at that point she did not know it was bhang.
19. She stated that she was forced to unbutton her blouse and was asked to pose for photographs. Also,
her pants was removed, and she was asked to pose for a photograph. The police officer allowed for the
photos to be taken. She also stated that she was not given time to call an advocate and that her parents
were called after the search. She was humiliated, ridiculed and fears her images may be misused.
Medical evidence and the First Petitioners Parents' evidence
20. Dr. Catherine Syengo Mutisya examined her and concluded that she suffered from post traumatic
stress disorder, while her mother testified that upon visiting the Police station, the fourth Respondent
showed her daughters nude photos in a phone. She stated that the experience has psychologically
affected her daughter. Her husband corroborated her evidence.
The Fourth Respondents evidence
21. The fourth Respondent's oral evidence basically reiterated the contents of her Replying affidavit
referred to above which sharply differ from the facts presented by counsel for the DPP discussed below.
Advocates' submissions
22. The Petitioners' counsel submitted that the fourth and fifth Respondents violated the Petitioner's
rights to dignity,[6]privacy and urged the court to award her aggravated damages.
23. The submissions by Mr. Ashimosi, counsel for the DPP are crucial in this case in that they sharply
differ from the contents of the affidavits filed by the Hon. Attorney General and the fourth Respondent

who was in charge of the officers involved in the arrest. Whereas counsel for the Honourable Attorney
General not only defended but went into great pains to justify the actions by the Police, Mr. Ashimosi
submitting for the DPP took a totally diametrically opposed position.
24. It is not clear why the Honourable Attorney General filed Responses for and on behalf of the DPP
and the Police officers sued in this case yet under Article 157 (10) of the Constitution, the DPP is
required to exercise his functions independently and without the direction or control of any person or
authority.
25. But what emerges from the Responses by the Hon. Attorney General's office is that there was a
thinly veiled attempt to cover up the ills committed by the Police. It is not clear why the A.G delved into
functions of the DPP. It was for the DPP to investigate the conduct of the Police officers which had been
put into question.
26. Article 157 (4) and (11) of the Constitution underscores this point. It provides that:-
“4. The Director of Public Prosecutions shall have power to direct the Inspector-General of the
National Police Service to investigate any information or allegation of criminal conduct and the
Inspector-General shall comply with any such direction.
11. In exercising the powers conferred by this Article, the Director of Public Prosecutions shall
have regard to the public interest, the interests of the administration of justice and the need to
prevent and avoid abuse of the legal process.” (our emphasis supplied).
27. In terms of Article 157 (11) of the Constitution, in exercising powers donated by the law, including
the power to direct the Inspector General to investigate an allegation of criminal conduct, the DPP is
enjoined, among other considerations, to have regard to the need to prevent and avoid abuse of the
legal process.
28. The candour and honesty of Mr. Ashimosi's submissions is discernible from the opening paragraph
and throughout his submissions. Mr Ashimosi opens his submissions by stating:-
"This was an investigation into the circumstances surrounding the cruel, inhuman and degrading
treatment of Magdalene Wanjiru by Police Officers at Kiangwaci Police Patrol Base, Sagana Police
Station within Kirinyga County on 5th August 2015."
29. This candidness brings to mind the often quoted statement by D.A. Bellemare, M.S.M, Q.C who put
best the often difficult course for the prosecutor when he said:-
“It is not easy to be a prosecutor. It is often a lonely journey. It tests character. It requires inner strength
and self-confidence. It requires personal integrity and solid moral compass. It requires humility and
willingness, where to appropriate, to recognize mistakes and take appropriate steps to correct them.
Prosecutors must be passionate about issues, but compassionate in their approach, always guided by
fairness and common sense.”[7]
30. The Constitutional provision in Article 157 (10) of the Constitution ensures that the DPP has
complete independence in his decision making processes. This is vital to protect the integrity of the
criminal justice system and the functions of the Police because it guarantees that any decision to
investigate or prosecute a person is made free of any external influences. In the words of John Kelly TD,
the prosecution system “should not only be impartial but should be seen to be so and that it should not

only be free from outside influence but should be manifestly so.”[8]The affidavits filed by the Hon.
Attorney General cannot pass this elementary test.
31. Also relevant are the following observations:-
“...the use of prosecutorial discretion should be exercised independently and free from ANY interference.
Prosecutors are required to carry out their duties without fear, favour or prejudice–impartially, with
objectivity, unaffected by individual or sectional interests and public or media pressures, fairly, having
regard to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage
of the suspect and make all necessary and reasonable enquiries and disclose the results of those
enquiries, regardless of whether they point to the guilt or innocence of the suspect ...That is a role which,
I fear, is not well understood in the community. It may not be a popular position but it is a very valuable
and important one.”[9]
32. The role of the prosecutor excludes any notion of winning or losing; it is to be efficiently performed
with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.[10]It is
said that the prosecutor acts in the general public interest and so it must be. That is where he
prosecutor’s ultimate loyalty and responsibility lie. Mere or reasonable suspicion that the DPP did not
act independently or acted on totally inadequate evidence or the police abused their investigation powers
is in my view sufficient to taint the proceedings. Mr. Ashimosi's view of the manner in which the search
was conducted in summarized in the following excerpt from his submissions:-
".... from analysis of evidence on the file, the DPP was satisfied that the actions of the fourth Respondent
contravene the conditions to follow when searching a female prisoner as set out in the Criminal
Procedure Code Section 27 which states that:-. "Whenever it is necessary to cause a woman to be
searched, the search shall be made by another woman with strict regard to decency."
33. Citing the Police Standing Orders and relevant statutory provisions Mr. Ashimosi submitted that:-
"The DPP concluded that by parading the Petitioner in an open place at the report office and exposing
her public area (sic) to a male police officer and other female and male students, the suspect, IP Agnes
Magiri violated the rights of the Petitioner as enshrined in the Constitution"(Emphasis added)
34. In Mr. Ashimosi's submissions, the fourth Respondent conducted the search in total violation of the
law and in breach of the first Petitioners' Constitutional Rights. Mr. Ashimosi also pointed out that the
DPP ordered institution of criminal proceedings against the fourth Respondent. He urged the court to
dismiss the case against the DPP and that the prayer seeking quash the conviction ought to have been
sought by of an appeal. Mr. Ashimosi was clear in his submissions that by parading the first Petitioner in
a Public area and exposing her to a male police officer, the fourth Respondent violated her rights to
dignity and that the fourth Petitioner has since been charged with the offence subjecting the first
petitioner to inhuman and degrading treatment.[11]
35. Mr. Ashimos's submissions cast serious doubts on the veracity of the affidavits filed by the A.G and
the alleged investigation that purportedly exonerated the conduct of the Police and puts into question
the constitutional validity of the alleged investigations in view of the provisions of Article 157 (4) & (11) of
the Constitution cited above.
Counsel for the amicus curiae identified three issues, namely, use of force and torture by state agents to
persons in custody, use of illegally obtained evidence and appropriate remedy and reparation to victims
of torture. Counsel submitted that international standards strictly limit the circumstances in which state

agents may use force to arrest, search and detain suspects and that evidence obtained through torture
ought to be excluded. Counsel also submitted that victims of torture have a right to redress.
37. The crux of the submissions by counsel for the interested Party is that by stripping the first Petitioner
panties and bra, the police officer subjected her to inhuman and degrading treatment; infringed her
privacy; acted against her best interest as a child; circulating her photographs was improper; and her
constitutional rights as an arrested person were violated.
38. The Hon. AG did not file submissions even though I granted Party's fourteen days to file from 27th
November 2017.
Issues for determination
39. From the facts and submissions enumerated above, I find that the following issues fall for
determination, namely; (a) whether the first Petitioners Rights to Dignity and privacy were violated, (b)
whether this court can quash a conviction rendered by a competent Court on a plea of guilty other than
by way of an appeal or Revision, (c) whether the first Petitioner is entitled to damages and if so, what is
the quantum, (d) what are the appropriate reliefs in this case.
Applicable legal framework
40. Article 2 (5) of the Constitution provides that the general rules of international law shall form part of
the law of Kenya.
41. Article 1 of the Universal Declaration of Human Rights, 1949 provides:-
"All human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood."
Article 5
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 12
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the law against
such interference or attacks."
42. The Universal Declaration of Human Rights, was, aptly described by Professor Richard Lillich as the
"Magna Carta of contemporary international human rights law." It is expressly premised on "the inherent
dignity and ... the equal and inalienable rights of all members of the human family."[12]
43. The African Charter on Human and Peoples' Rights[13] provides that "Every individual shall be
entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the Charter without
distinction of any kind...." It also provides for equality before the law, equal protection of the
law,[14]guarantees respect for life and the integrity of the person,[15]and the right to the respect of the
dignity inherent in a human being and prohibits all forms of degradation, torture, cruel, inhuman or
degrading punishment and treatment.[16]

44. The Constitution entrenches respect for human dignity, the achievement of equality and the
advancement of human rights and freedoms, being the foundational values of the Constitution and
forming the bedrock upon which the Constitution is based. Article 28 of the Constitution provides that
every person has inherent dignity and the right to have that dignity respected and protected.
45. Article 19 of the Constitution stipulates that the Bill of Rights is the cornerstone of democracy in
Kenya. It enshrines the rights of all people in the country and affirms the democratic values of human
dignity, equality and freedom.
46. Article 31 provides the Right to Privacy of the person, home or property searched. It recognizes the
right of every person to privacy, which includes the right not to have their person searched. There are
elaborate statutory provisions prescribing the manner in which the police are to search women.
47. Article 29 guarantees the right to freedom and security of the person, which includes the right not to
be deprived of freedom arbitrarily or without just cause, to be free from all forms of violence from either
public or private sources, and the right not to be treated or punished in a cruel, inhuman or degrading
way. This Constitution recognizes the right of everyone who is arrested for allegedly committing an
offence not to be compelled to make any confession or admission that could be used against him.[17]
48. Article 52 of the Constitution elaborates certain rights to ensure greater certainty as to the
application of those rights and fundamental freedoms to certain groups of persons. Among these groups
are children. Article 53 guarantees Rights to children, particularly children in conflict with the law.
Whether the first Petitioners' Rights to Dignity, privacy and right not to be subjected to
inhuman/degrading treatment were violated
49. Article 28 provides no definition of dignity. However its role and importance as a foundational
constitutional value has been emphasized in a number of cases. In the South African case of S v
Makwanyane,[18] O'Regan J pointed out that "without dignity, human life is substantially diminished" and
pronounced the prime value of dignity in the following terms:-
“The importance of dignity as a founding value of the ... Constitution cannot be overemphasized.
Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human
beings are entitled to be treated as worthy of respect and concern. The right is therefore the foundation
of many of the other rights that are specifically entrenched in Chapter 3.”
50. O’Regan J drew attention to the centrality of human dignity as a constitutional value when he
stated:-
“Human dignity … informs constitutional adjudication and interpretation at a range of levels. It is a value
that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged
the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the
right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also
a constitutional value that is of central significance in the limitations analysis. ... dignity is not only a
value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and
protected. In many cases, however where the value of human dignity is offended, the primary
constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the
right to equality or the right not to be subjected to slavery, servitude or forced labour.”[19]
51. So important is the right not to be subjected to cruel, inhuman or degrading treatment or punishment

that under Article 25 of the Constitution, it is one of the Rights that may not be limited.
52. Article 31 of the Constitution provides the Right to Privacy of the person, home or property searched.
It has become established law, insofar as privacy is concerned, that this right becomes more powerful
and deserving of greater protection the more intimate the personal sphere of the life of a human being
which comes into legal play. Ackerman J mentioned some examples of breaches of privacy and
specifically included "peeping at a woman while she is undressing."[20]
53. There is a connection between an individual’s right to privacy and the right to dignity. Privacy fosters
human dignity insofar as it is premised on and protects an individual’s entitlement to a “sphere of private
intimacy and autonomy.”[21]The rights of equality and dignity are closely related, as are the rights of
dignity and privacy.[22]
54. Guidance can be obtained from the case of Beatrice vs. Whitemore Lake School[23]which related to
the unreasonable nature of a search. In that case a student reported that $364 had been stolen from her
gym bag during a physical education class. 1n response to the alleged theft, teachers searched the
entire class of 20 boys and five girls in their respective locker rooms. Boys were required to undress to
their underwear. Similarly, girls were required to undress in front of each other. At the conclusion of the
search, no money was found. A suit was filed by the American Civil Liberties Union of Michigan on
behalf of students
impacted by the search claiming Fourth Amendment rights violations against unreasonable search and
seizure and a Fourteenth Amendment rights violation involving an equal protection violation. The Court
found the strip search was unreasonable in the circumstances of the case.
55. The Constitution places human dignity and equality as the central theme to our constitutional order.
According to Currie and De Waal, 'the determination of whether an invasion of the common law right to
privacy has taken place is a single enquiry. It essentially involves an assessment as to whether the
invasion is unlawful.[24] The assertion has also been made that in the case of female prisoners'
expectation of privacy, the courts have held that gender and gender differences must matter because the
courts imbue women with a sense of modesty and a greater need for privacy than men.[25]
56. When a constitutional right is infringed, it is important to determine whether such infringement is
justified in terms of Article 24 of the Constitution which provides that the rights in the Bill of Rights may
be limited only in terms of law and only to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom, taking into account all
relevant factors, including — The nature of the right; The importance of the purpose of the limitation; The
nature and extent of the limitation; The relation between the limitation and its purpose; and Less
restrictive means to achieve the purpose.
57. The provisions of the law governing conduct of police officers while searching women prisoners'
were correctly captured by Mr. Ashimosi in his submissions. I need not repeat them here. It will suffice to
state that the police violated the said provisions and the Constitution.
58. This Courts is constitutionally obliged to consider the facts complained of in this case through the
lens of Article 53 (d), (f) and (2) of the Constitution to determine if the police officers considered the first
Petitioners' best interests, and if they did, whether they accorded the best interests paramount
importance. The said provisions provide that every child has a right-
(d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman
treatment and punishment, and hazardous or exploitative labour;

(f) not to be detained, except as a measure of last resort, and when detained, to be held-
(i) for the shortest appropriate period of time; and
(ii) separate from adults and in conditions that take account of the child's sex and age.
(2) A child's best interests are of paramount importance in every matter concerning the child.
59. Courts are enjoined when interpreting any legislation to promote the values that underlie an open
and democratic society based on human dignity, equality and freedom. This requires of courts to play a
crucial role in giving content and meaning to the fundamental rights enshrined in the Bill of Rights. The
courts are the guardians of the Constitution and the values it espouses.
60. In interpreting the law, courts must infuse it with values of our Constitution. Courts must never shirk
this constitutional responsibility. As Moseneke DCJ stated:-
“The Constitution has reconfigured the way judges should do their work. It invites us into a new plane of
jurisprudential creativity and self-reflection about legal method, analysis and reasoning consistent with
transformative roles. The new legal order liberates the judicial function from the confines of the common
law, customary law, statutory law or any other law to the extent of its inconsistency with the Constitution.
This is an epoch making opportunity which only a few, in my view, of the High Court judges have cared
to embrace or grasp. A substantive, deliberate and speedy plan to achieve an appropriate shift of legal
culture at the High Courts and Magistrates’ Courts is necessary. After all, it is the Constitution that
confers substantial review powers on the judiciary. However, without an appropriate legal culture change
the judiciary may become an instrument of social retrogression. In time the judiciary will lose its
constitutionally derived legitimacy.”[26]
61. All courts, including the High Court, are enjoined by the Constitution to uphold the rights of all, to
ensure compliance with constitutional values, and to do so by granting ‘appropriate relief’, ‘just and
equitable orders’, and by developing the common law ‘taking into account the interests of justice’. In a
constitutional democracy such as ours, courts have to devise means of protecting and enforcing
fundamental rights.[27]
62. Seven years ago, we adopted our Constitution. In doing so we signalled a decisive break with our
past – a ringing rejection of a history of denial of human rights to our people. We started an ambitious
and laudable project to develop, nurture and infuse a culture of respect for human rights in all aspects of
our lives. We all committed ourselves to a new and egalitarian society founded on values of human
dignity, equality and freedom for all.
63. Article 2 proclaims the Constitution to be the supreme law of the country. Importantly, it declares that
law or conduct inconsistent with it is invalid, and further that the obligations it imposes must be fulfilled.
The Constitution is underpinned by a Bill of Rights that, according to Article 19, is declared a cornerstone
of our democracy. The Bill of Rights is an integral part of Kenya's democratic state and is the framework
for social, economic and cultural policies.
64. The rights and fundamental freedom in the Bill of Rights belong to each individual and are not
granted by the State. Article 21 commands the State, and every state organ including the Police to
observe, to respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights
subject to the limitations in Article 24 or elsewhere in the Bill of Rights.

65. Thus the Police are also required to honour the obligation to respect, protect, promote and fulfil the
rights in the Bill of Rights. This is crucial as the police are, in the daily execution of their duties, involved
in instances that have the potential to affect people’s rights to dignity, equality and freedom – which are
foundational to our democracy. Our people deserve a police service which is steeped in a culture of
respect for human rights. This requires them in all their dealings with society whilst executing their
constitutional duties to be guided by respect for human rights and strict observance of the rights to
human dignity, equality and freedom.
66. It is trite that an arrest is an invasive curtailment of a person’s freedom. Under any circumstances an
arrest is a traumatising event. Its impact and consequences on children might be long-lasting if not
permanent. The need for our society to be sensitive to a child’s inherent vulnerability is behind the
provisions of Article 53 of the Constitution. Article 53 is broadly worded. The interests of children are
multifarious. However, in the context of arrests of children, Article 53 seeks to insulate them from the
trauma of an arrest by demanding in peremptory terms that, even when a child has to be arrested, his or
her best interests must be accorded paramount importance.
67. Given the importance which our Constitution places on the rights of children, this means that an
arrest of a child should be resorted to when the facts are such that there is no other less invasive way of
securing the attendance of such a child before a court. This requires police officers to consider and
weigh all the facts carefully and exercise a value-judgment whether an arrest can be justified. Invariably
this puts them in an invidious position. A question might be asked: how do they execute their
constitutional mandate to prevent and combat crime without falling foul of Article 53" Does this mean that
children shall, under no circumstances, be arrested or detained" The answer is no. For it is a fact that
children do commit crimes. Even heinous crimes for that matter. Statistics can attest to this. Sad as it
might be, it is a reality of our times.
68. Does the fact that section Article 53 (2) demands that the best interests of children be accorded
paramount importance mean that children’s rights trump all other rights" Certainly not. All that the
Constitution requires is that, unlike pre-2010, and in line with our solemn undertaking as a nation to
create a new and caring society, children should be treated as children – with care, compassion,
empathy and understanding of their vulnerability and inherent frailties. Even when they are in conflict
with the law, we should not permit the hand of the law to fall hard on them like a sledgehammer lest we
destroy them. The Constitution demands that our criminal justice system should be child-sensitive.
69. Contrary to the position pre-2010, our constitutional dispensation has ushered in a new era – an era
where the best interests of a child must be accorded paramount importance in all matters affecting the
child – an era where we, as society, are committed to raising, developing and nurturing our children in an
environment that conduces to their well-being. This resolve was captured admirably in the following
passage:-
“Children are precious members of our society and any law that affects them must have due regard to
their vulnerability and their need for guidance. We have a duty to ensure that they receive the support
and assistance that are necessary for their positive growth and development. Indeed, this Court has
recognised that children merit special protection through legislation that guards and enforces their rights
and liberties. We must be careful, however, to ensure that, in attempting to guide and protect children,
our interventions do not expose them to harsh circumstances which can only have adverse effects on
their development.”[28]
70. In line with its constitutional obligation, the High Court is obliged to interpret police actions premised
on provisions relating to arrest, detention and searching of children through the prism of Article 53 of the

Constitution to determine if the police officers had accorded the applicant’s best interests paramount
importance. This is a constitutional obligation imposed on them by Article 53 of the Constitution.
71. Thus when the constitutionality of the manner in which the police conducted the search is
challenged, this court ought first to determine whether, through “the application of all legitimate
interpretive aids, the impugned action is capable of being read in a manner that is constitutionally
compliant.
72. This Court, in line with its constitutional mandate to promote and protect the values and ethos that
underpin our Constitution, will undoubtedly find and hold that an arrest, search and detention of a child
that violates privacy and dignity of the child is unconstitutional. The thrust of this conclusion is that,
because an arrest, search and detention constitutes an infringement of a person’s rights to his or her
liberty, dignity and privacy, all of which are enshrined in the Bill of Rights, the actions must be justifiable
according to the dictates of the Bill of Rights. Thus, in line with our nascent human rights culture, before
every arrest, search and a detention of a child is executed, police officers must consider whether there
are no less invasive methods which may be used to bring the suspect before court and to secure the
evidence.
73. Article 259 enjoins the courts, in interpreting the Constitution, to promote the purposes, values and
principles of the Constitution, advance the Rule of Law, and Human Rights and Fundamental freedoms
in the Bill of Rights, permit development of the law and contribute to good governance. This requires
courts to interpret the fourth Respondents actions in line with these constitutional values.
74. Article 259 of the Constitution introduced a new approach to the interpretation of the Constitution.
This approach has been described as 'a mandatory constitutional canon of statutory and Constitutional
interpretation'. The duty to adopt an interpretation that conforms to Article 259 mandatory.
75. It is sufficient that in arresting a child, police officers must do it through the lens of the Bill of Rights
and pay special attention to the paramount importance of the best interests of such a child. The
Constitution demands that of the police as a constitutive part of the State. A failure to do this would
render such an arrest, search and detention inconsistent with the Constitution and thus unlawful.
76. The first Petitioner was detained and arraigned before the court the next day. Article 53 (2) demands
that a child should only be detained as a measure of last resort. In its ordinary and grammatical
meaning, the expression “a measure of last resort” means that the detention of a child should happen
when all else has failed. This requires police officers to investigate other less invasive methods which
can satisfy their legitimate purpose without having to detain a child. This is because, first, a detention
constitutes a drastic curtailment of a person’s freedom which our Constitution guards jealously, and
should only be interfered with where there is a justifiable cause. Second, detention has traumatic,
brutalising, dehumanising and degrading effects on people and of course, worse on children.
77. It is a known fact that our detention centres, be it police holding cells or correctional centres, are not
ideal places. They are not homes. They are bereft of most facilities which one requires for raising
children. It is worse for children. The atmosphere is not conducive to their normal growth, healthy psycho-
emotional development and nurturing as children. The evidence by the first Petitioner, the mother and
the Doctor is that the first Petitioner was psychologically affected. She was seriously traumatised by this
experience. Her detention has left her with serious psycho-emotional problems. Wounds that are still
festering. These are the deleterious effects of incarceration against which the Constitution seeks to
protect children. This is the reason why, even when a child has to be detained, Article 53 (2) stipulates
that it should be as a last resort and for “the shortest appropriate time.” There is no evidence the Police

considered other options such as bail which the parents said they were ready to provide or why the
Police failed to admit her into bail pending charge which is a Constitutional Right.[29]
78. Similar to the discussion on arrest, does the constitutional injunction to safeguard children’s rights
mean that children will never be detained" The answer is also no. The need to detain a child is
necessarily a fact based inquiry that requires a balancing of interests. Cameron J eloquently explains
this balance in Centre for Child Law:-
“The constitutional injunction that ‘[a] child’s best interests are of paramount importance in every matter
concerning the child’ does not preclude sending child offenders to jail. It means that the child’s interests
are ‘more important than anything else’, but not that everything else is unimportant: the entire spectrum
of considerations relating to the child offender, the offence and the interests of society may require
incarceration as the last resort of punishment.”[30]
79. Was the first Petitioners detention in the circumstances of this case justifiable as a measure of last
resort" Certainly not. This is because both her parents reported to the police station, were ready to
provide bail, and, importantly, it was not shown that she was a flight risk; nothing prevented the police
officers from leaving the first Petitioner in the custody of her parents with appropriate instructions to
ensure her appearance in court. There being no evidence that the Police considered her circumstances
to determine if her detention was a measure of last resort, hence, it follows that her detention was in
flagrant violation of Article 53 (2). It is therefore unlawful.
80. In this case, to determine whether the dignity of the first Petitioner was impaired, the question that
should be asked is whether the conduct diminishes the feelings of her self-worth. A strip search is
generally humiliating, uncomfortable, and of an invasive nature, and in the instant case it affected the
dignity of the girls and in particular the first Petitioner. The photographs annexed to the petition attest to
this.
81. The right to dignity is at the heart of the Constitution. It is the basis of many other rights. The basis is
that of recognizing that every person has worth and value and must be treated with dignity. This is also
highlighted in the international treaties Kenya has assented, some of which are mentioned above.
82. This right to dignity is further relevant to the specific social context in Kenya. In many instances, past
and present, Children and women's basic rights have been violated within society. Women and children
are vulnerable to violence and unjust treatment due to economic inequalities and gross abuse of power
as is evident in the instant case.
83. The submissions by Mr. Ashimosi that the fourth Respondent conducted the search in total violation
of the law and the Constitution is telling. The fourth Respondent was charged in court for her conduct.
The evidence of the first Petitioner is clear that the strip search was conducted illegally.
84. Mr. Ashimosi also submitted that investigations revealed that the fourth Respondent conducted the
search in public and or allowed male Police officers to be present and photographs to be taken. It is clear
the first Petitioner was stripped naked to be searched and exposed to cameras.
85. A strip search constitutes an interference with the privacy of the individual concerned. It is
recognized that common law recognizes the right to privacy as an independent personality right. Privacy
is therefore, a valuable aspect of one's personality. The right to privacy is protected in terms of both
common law and the Constitution of Kenya. The right is however not absolute as there are competing
factors such as maintaining law and order that can bear a significant limitation on the right. A careful

weighing up of the right to privacy and other factors is necessary.
86. In the case of a constitutional invasion of privacy the following questions need to be answered: (a)
Has the invasive law or conduct infringed the right to privacy in the Constitution" (b) If so, is such an
infringement justifiable in terms of the requirements laid down in the limitation clause of the Constitution"
87. The act of causing the first Petitioner and her colleagues to strip naked in the presence of the fourth
and fifth Respondents and of one another and other persons is undeniably and invasion of their privacy.
The search was unlawful in that it violates her constitutional rights to privacy and dignity. Even if we are
to assume that the first Petitioner and her colleagues stripped naked without a request to do so, the
presence of other persons while they did so, would also amount to wrongful conduct.
88. The Police are required by law to uphold the values enshrined in the Constitution. They are further
prohibited from conducting strip searches except as provided by the law.
89. On Freedom and Security of the Person. Searching of any person that involves the exposure of that
person's naked body, and in particular the most private parts thereof, to the gaze of another person, is
degrading to the person being so exposed. The conduct of the fourth and fifth Respondents with
regard to the first Petitioner and her colleagues was inherently inhumane, and amounted to a degrading
assault upon their physical, emotional and psychological integrity.
90. The normative idea underlying this broad consensus is that fundamental rights are owed to persons
as a matter of human dignity and should be honored by all government agents. As David Feldman has
written, "there are certain kinds of treatment which are simply incompatible with the idea that one is
dealing with a human being who, as such, is entitled to respect for his or her humanity and dignity."[31]
The rights, freedom from inhuman and degrading treatment, privacy, due process, and equal protection
under the law are among the minimal rights that the world has come to demand of any society. In the
words of the U.S. Supreme Court, these rights are "implicit in the concept of ordered liberty."[32]
91. The African Charter on the Rights and Welfare of the Child recognises in its Preamble— “that the
child, due to the needs of his physical and mental development requires particular care with regard to
health, physical, mental, moral and social development, and requires legal protection in conditions of
freedom, dignity and security.” Article 16(1) goes on to provide that: “States Parties to the present
Charter shall take specific legislative, administrative, social and educational measures to protect the
child from all forms of torture, inhuman or degrading treatment and especially . . . maltreatment including
sexual abuse”.
92. Children need special protection because they are among the most vulnerable members of society.
They are dependent on others - their parents and families, or the state when these fail - for care and
protection. As a result, the drafters of our Constitution made children's rights a priority - and stated that
the best interests of a child are the overriding concern when it comes to any matter affecting a child.
Thus, the inclusion in the Bill of Rights of a provision on the rights of the child was an important
development for Kenyan children, many of whom have suffered and continue to suffer long
imprisonments and detention in harsh conditions. The objective of this special protection is to ensure
that the justice system treats every child in conflict with the law in a manner that recognizes and upholds
human dignity and worth, and instils in the child respect for the fundamental rights and freedom of
others. The Rule considers the developmental age of the child and the desirability of the child's
reintegration in and assumption of a constructive role in society in accordance with the principles of
balanced and restorative justice.

93. The search was conducted in a manner which was degrading in that it was a strip search. The fact
that the search was conducted in the presence of others added to the indignity of the situation. The
fourth Respondents' search of the first Petitioner and her colleagues constitutes a violation of their rights
to human dignity, privacy and freedom and security of their person.
94. Further, the forth Respondents' act of causing the Complainant and her colleagues to undress
diminished the self worth, confidence and emotional well being of the first Petitioner and her colleagues.
The conduct by the Police contradicts the values enshrined in the Constitution.
95. The Police are specifically required to search women within the limits provided under the law and
must uphold the values enshrined in the Constitution. In the current constitutional dispensation, an
unlawful interference with a person's right is a constitutional infringement. The Police failed to exercise
their duties in line with the law, the Constitution and uphold the Bill of Rights.
96. In terms of Article 53 of the Constitution, in all matters concerning children (including litigation or
Police investigations)[33] their best interests are of paramount importance. Article 53 of the Constitution
must be interpreted so as to promote the foundational values of human dignity, equality and freedom.
The reach of Article 53 extends beyond those rights enumerated in the Bill of Rights, it creates a right
that is independent of the other rights specified in the Bill of Rights. It establishes a set of rights that
courts are obliged to enforce.[34]
97. The ambit of the provisions is undoubtedly wide. The comprehensive and emphatic language of
Article 53 (d), (f) and (2) indicates that just as law enforcement must always be gender-sensitive, so
must it always be child-sensitive; that statutes must be interpreted and the common law developed in a
manner which favours protecting and advancing the interests of children; and that courts must function in
a manner which at all times shows due respect for children's rights.[35]
98. The inclusion of a general standard (‘the best interest of a child’) for the protection of children’s
rights in the Constitution can become a benchmark for review of all proceedings in which decisions are
taken regarding children. Courts and administrative authorities will be constitutionally bound to give
consideration to the effect their decisions will have on children’s lives.
99. There exists in this case the reasonable privacy interests of the first Petitioner who is depicted in the
images. There is also a significant public interest in ensuring that no duplication or distribution occurs in
the disclosure process. Those interests ought not to be further compromised by the copying, viewing,
circulation or distribution of the images beyond what is reasonably necessary to give effect to her
constitutional rights.
100. It is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and
psychological well-being of a minor is compelling’ and that ‘[a] democratic society rests, for its
continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens. The
prevention of exploitation and abuse of children constitutes a government objective of surpassing
importance.[36]
101. The harm of child abuse is real and ongoing and the State is under a constitutional obligation to
combat it. To hold otherwise would place the State in jeopardy of having to close the gate, as it were,
after the horse has bolted and might signal a breach by the State of its obligation towards children.
Children’s dignity rights are of special importance. The degradation of children through publishing their
nude images is a serious harm which impairs their dignity and contributes to a culture which devalues
their worth.

102. Society has recognised that childhood is a special stage in life which is to be both treasured and
guarded. The State must ensure that the lives of children are not disrupted by overzealous police
officers who in total disregard of the law, the constitution and children's' rights engage in acts as was
witnessed in this case. There is obvious mental and physical harm suffered by the victims of child abuse.
The first Petitioner and her colleagues were forced naked to pose for photographs to be taken. Even if
the Police desired to gather evidence, they ought to have done it within the confines of the law. The chief
purpose of the statutory provisions prescribing the manner in which women are to be searched is to
protect their dignity, humanity and integrity.
103. A child whose nude images are circulated in the media has to go through life knowing that the
image is probably circulating within the mass distribution network for the Public to see. This experience
may haunt him or her for long because it creates a permanent record of the child’s image. The
psychological harm to the child is exacerbated if he or she knows that the photograph continues to
circulate among viewers who may use it to derive sexual satisfaction or other purposes. Maintaining the
integrity of the administration of justice is also an important principle of fundamental justice. The
principles of fundamental justice operate to protect the integrity of the system itself. The Constitution
guarantees individuals a fundamentally fair trial and not the fairest of all possible trials.[37] A fair trial
includes a fair investigation and arrest process.
104. The photographing and publication of the child's images strikes at the dignity of the child, it is
harmful to the child, and it is potentially harmful because it invades on her privacy and dignity. Dignity is
a founding value of our Constitution. It informs most if not all of the rights in the Bill of Rights and for that
reason is of central significance in the limitations analysis.
105. The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution
asserts dignity to contradict our past in which human dignity was routinely and cruelly denied. It asserts it
too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings.
106. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It
is a value that informs the interpretation of many, possibly all, other rights. This Court acknowledges the
importance of the constitutional value of dignity in interpreting rights such as the right to equality, the
right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also
a constitutional value that is of central significance in the limitations analysis. Dignity is not only a value
fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and
protected.
107. Similarly, Article 1 of the Universal Declaration of Human Rights stresses the importance of human
dignity. It states: “All human beings are born free and equal in dignity and rights.” Children merit special
protection by the state and must be protected by legislation which guards and enforces their rights and
liberties. This is recognised in Article 53 of our Constitution. Children’s dignity rights are of special
importance. The degradation of children through illegal body search as happened in this case and taking
nude photos is a serious harm which impairs the Petitioners' dignity and devalues her worth.
108. Based on the above exposition of the facts, the law and authorities, I conclude that the search was
illegal in that it violated the provisions of the Children's Act,[38]Article 53 of the Constitution, the right to
dignity and not to be subjected to degrading treatment and international conventions protecting the
rights to children and the statutory provisions governing police conduct while searching women.
Whether this court can quash the conviction in the criminal case.

109. The first Petitioner was charged in a criminal court. She was convicted on her own plea of guilty by
a court of competent jurisdiction. In my view, the Petitioner ought to have challenged the said conviction
either by way of an appeal or by way of a revision as provided under the provisions of the Criminal
Procedure Code.[39] There is a well laid down statutory mechanism of challenging the said conviction. It
would be inappropriate for this court to exercise its jurisdiction and quash the said decision.
110. The Constitution recognizes the hierarchy of our courts and the appellate mechanism through which
decisions of inferior courts are subjected to appeals to the higher courts. A holistic and purposive
reading of the Constitution would therefore entail construing the unlimited original jurisdiction
conferred on the High Court by Article 165(3)(a) and Article 23 (3) of the Constitution in a way that
will recognize and uphold its appellate jurisdiction to hear and determine appeals from the lower
court.
111. As was held in Yusuf Gitau Abdallah vs. Building Centre (K) Ltd & 4 Others:-[40]
“A party cannot be heard to move a Court in glaring contradiction of the judicial hierarchal
system of the land on the pretext that an injustice will be perpetrated by the lower court. Courts
of justice have the jurisdiction to do justice and not injustice. However, the law acknowledges
that judges are human and are fallible hence the judicial remedies of appeal and review. A party
cannot in total disregard of these fundamental legal redress frameworks move the apex Court”.
112. Also relevant is the Supreme Court decision in Peter Oduor Ngoge vs. Hon. Francis Ole
Kaparo,[41] , [para. 29-30] it was held:-
“… it will be perverse for this Court to assume a jurisdiction which, by law, is reposed in the
Court of Appeal,…. In the interpretation of any law touching on the Supreme Court’s appellate
jurisdiction, the guiding principle is to be that the chain of Courts in the constitutional set-up,
running up to the Court of Appeal, have the professional competence, and proper safety designs,
to resolve all matters...Consequently, this Court recognizes that all courts have the constitutional
competence to hear and determine matters that fall within their jurisdictions…" framework”.
113. My reading of the law and authorities is that the spirit and intention of the Constitution is that
decisions of the lower courts as in the present case ought to be challenged through the appellate
mechanism or by way of revision as provided under the Criminal Procedure Code[42]without necessarily
invoking this courts powers under Articles 165 and 23.
Whether the Petitioner is entitled to damages
114. A person ’s image constitutes one of the chief attributes of his or her personality, as it reveals the
person ’s unique characteristics and distinguishes the person from his or her peers. The right to the
protection of one ’s image is thus one of the essential components of personal development. It mainly
presupposes the individual’s right to control the use of that image, including the right to refuse
publication thereof.[43]
115. Personality rights, generally speaking, consist of two types of rights, the right to privacy and the
right of publicity. The right of privacy is the right to keep one’s image and likeness from exploitation
without permission or compensation and generally applies to members of the general public. The right of
publicity is the exclusive right of an individual to market his or her image, likeness or persona for financial
gain.

116. The petitioners claim an order of compensation and aggravated damages as a result of breach of
fundamental rights of the first Petitioner. Aggravated damages are the special and highly exceptional
damages awarded on a defendant by a court, when his/her conduct amounts to tortious conduct
subjecting the plaintiff to humiliating and malicious circumstances. Additional damages are also awarded
in situations where a plaintiff is subjected to distress, embarrassment, or humiliation. Aggravated
damages are basically compensatory in nature and they are awarded for the aggravated damage that is
caused to a plaintiff. Aggravated damages are determined on the basis of the intangible injury inflicted
on a plaintiff. Intangible injury includes the pain, anguish, grief, humiliation, wounded pride, damaged self-
confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that are caused by
the conduct of a defendant. When compared to punitive damages aggravated damages require proof of
injury. Aggravated damages can be attained as additional compensation if the injured establishes that a
breach caused mental distress.[44]
117. It is well settled that award of compensation is an appropriate and effective remedy for redress of
an established infringement of a fundamental right under the constitution. The quantum of compensation
will, however, depend upon the facts and circumstances of each case.
116. Award of damages entails exercise of judicial discretion which should be exercised judicially and
that means that it must be exercised upon reason and principle and not upon caprice or personal
opinion.[45]The jurisprudence that has emerged in cases of violation of fundamental rights has cleared
the doubts about the nature and scope of the this public law remedy evolved by the Courts.[46] Monetary
compensation for violation of fundamental rights is now an acknowledged remedy in public law for
enforcement and protection of fundamental rights; Such claim is distinct from, and in addition to remedy
in private law for damages for tort.
119. Arriving at the award of damages is not an exact science. No monetary sum can really erase the
scarring of the soul and the deprivation of dignity that some of these violations of rights entail.[47] 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 the violation, but
in most cases more will be required than words. If the person wronged has suffered damage, the court
may award compensation.
120. 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,
emphasise the importance of the constitutional right and the gravity of the breach, and deter further
breaches. All these elements have a place in helping the court arrive at a reasonable award. The court
must consider and have regard to all the circumstances of the case.
121. It is self evident that the assessment of compensation for an injury or loss, which is neither
physical nor financial, presents special problems for the judicial process, which aims to produce results
objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration worry,
anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and
the degree of their intensity are incapable of objective proof or of measurement in monetary terms.
122. Translating hurt feelings into hard currency is bound to be an artificial exercise. There is no medium
of exchange or market for non-pecuniary losses and their monetary evaluation, it is a philosophical and
policy exercise more than a legal or logical one.[48] The award must be fair and reasonable, fairness
being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No

money can provide true restitution.
123. Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are
none the less real in human terms. The courts and tribunals have to do the best they can on the
available material to make a sensible assessment, accepting that it is impossible to justify or explain a
particular sum with the same kind of solid evidential foundation and persuasive practical reasoning
available in the calculation of financial loss or compensation for bodily injury.
124. The Petitioners claim a sum of Ksh. 7,000,000/= as compensation. It is not clear how this amount
was arrived at. In the submissions, there is no serious argument to support this amount.
125. However considering the nature of the violations, the legal principles discussed above, the nature of
the violations, and bearing in mind the fact that it may not be easy to quantify infringement of
fundamental rights in a case of this nature, and doing the best I can, I find that an award of a global sum
of Ksh. 4,000,000/= would be reasonable in the circumstances.
126. Courts do not and cannot countenance a denial or violation of Constitutionally guaranteed
Fundamental Rights which are a cornerstone of our legal system. It is the Court’s primary duty to
protect these basic rights of the people vis-à-vis actions by government agents. As Albert Camus, a
noble prize winner once remarked "either cooperate with injustice or fight with it." Elie Wiesel, a
holocaust survivor once remarked "...we must always side with the Rule of Law." [49]
127. It cannot be denied that the police actions in this case were inspired by a noble intention of fighting
crime, geared towards the betterment of the nation and its people and in particular the youth. But then
again, it is important to remember this ethical principle: “The end does not justify the means.” No matter
how noble and worthy of admiration the purpose of an act, but if the means to be employed in
accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed.
The Court cannot just turn a blind eye and simply let it pass. The Court will continue to uphold the
Constitution and its enshrined principles.
Final orders
128. In view of my analysis above, I find and hold that the fourth and fifth Respondents violated the
statutory provisions governing conduct of Police officers while searching women. I find and hold that
their actions violated the first Petitioners Rights in that they failed to act in the best interests of the first
Petitioner as provided under the Children's Act,[50] Article 53 of the Constitution and that their conduct
was a gross violation of the first Petitioners constitutional right to human dignity, freedom and security of
her person and her right to privacy.
129. I further find and hold that the first, second, third and fourth Respondents are vicariously liable for
the actions and or omissions of the fourth and fifth Respondents complained of in this Petition.
130. In view of my above analysis and guided by the law and authorities enumerated above, I conclude
and find that this Petition partly succeeds. Accordingly, I find the appropriate orders which command
themselves for issue in this case are:-
i. A declaration be and is hereby issued that the fourth Respondents conduct of searching the first
Petitioner in the Presence male police officers and/or other students and members of the public and
photographing her or allowing or permitting third parties to take her nude photographs was a gross
violation of the law and an infringement of her Constitutional Rights to dignity, privacy and her right not

to be subjected to degrading treatment.
ii. A declaration be and is hereby issued that the manner in which the Police strip searched the first
Petitioner and the other students was a gross violation of the statutory provisions governing conduct of
Police while searching women, a violation of Article 53 (d), (f) and (2) of the Constitution and the
Children's Act. Children's Act.
iii. The Order of judicial review seeking to quash the conviction and sentence of the first Petitioner in
Baricho Criminal Case No. 1262 of 2015 is hereby refused on grounds that the law provides for right of
appeal or revision against the said decision.
iv. A Declaration be and is hereby issued that the that the first Petitioner is entitled to damages for
violation of her constitutional rights to dignity, degrading treatment and privacy.
v. That judgement be and is hereby entered in favour of the first Petitioner against the
Respondents jointly and severally for a global sum of Ksh. 4,000,000/= by way of general damages.
vi. That the above sums shall attract interests at court rates from date of filing suit until payment in full.
v. No orders as to costs
Orders accordingly.
Signed, Dated, Delivered at Nairobi this 18th day December 2017
John M. Mativo
Judge
[1]Act No. 8 of 2001
[2] Article 156 of the Constitution
[3] Article 157 of the Constitution
[4] Baricho Magistrates Criminal Case Number 1262 of 2015

[5] Contrary to Section 39 (1) as read with 3 (2) of the Narcotic Drugs and Psychotropic Substances
Act No. 4 of 1994,
[6]Counsel cited Marilyn Muthoni Kamuru & 2 Others vs The Hon. Attorney General & Another PET
No. 566 of 2012 and A.N.N. vs The Hon. A.G, Pet. No. 240 OF 2012
[7] Infra
[8] http://www.paclii.org/fj/other/prosecutors-handbook.pdf
[9]Extract from a Speech by Anna Katzmann, SC at a dinner of the NSW Law Society’s Government
Lawyers CLE Conference on 30 October 2007. (Now the Hon. Anna Katzmann, Judge of the Federal
Court of Australia).
[10] (see Boucher v the Queen (1954) 110 CCC 263, 270).
[11] Contrary to section 95 (3) of the National Police Service Act, 2011
[12]Richard B. Lillich, The Human Rights of Aliens in Contemporary International Law, 41

(Manchester University Press 1984); Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N.

GAOR, 3d. Sess., Supp. No. 13, at 71,U.N. Doc. Al810 (1948).
[13] Article 2
[14] Article 3
[15] Article 4
[16] Article 5
[17] Article 49
[18] {1995} ZACC 3; 1995 (3) SA 391(CC) in para [328].
[19] In Dawood vs Minister of Home Affairs: Shalabi vs Minister of Home Affairs: Thomas vs Minister
of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC) in para [35].
[20]1996 (2) SA 751 (CC) at [711.

[21]As the court noted in Teddy Bear Clinic for Abused Children and Another v Minister of Justice and
Constitutional Development and another 2014 (2) SA 168 (CC) at para 64:
[22]National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others
(CCT11/98) [1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517 (9 October 1998Y
[23] Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 601 (6th Cir, 2005)
[24]Currie I & De Waal J ; Bill of Rights Handbook 6th ed (Juts & Company Ltd 2013 ) at page 295.
[25]Jurado, R, "The essence of her womanhood:defining the privacy rights of women prisoners and
the employment rights of women guards" ,1998-199 Journal on Gender, Social Policy and the Law - Vol
7 at 4.
[26] In “Transformative adjudication, the fourth Bram Fischer memorial lecture” (2002) 18 SAJHR
309 at 318
[27] Froneman J, in Kate vs MEC for the Department of Welfare, Eastern Cape [2005] 1 All SA 745
(SE) at para 16

[28] By Khampepe J in Teddy Bear Clinic for Abused Children and Another vs Minister of Justice and
Constitutional Development and Another [2013] ZACC 35; 2014 (2) SA 168 (CC); 2013 (12) BCLR 1429
(CC) (Teddy Bear Clinic) at para 1.
[29] Article 49 (h)
[30] See Centre for Child Law v Minister for Justice and Constitutional Development and Others
[2009] ZACC 18; 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) (Centre for Child Law).
[31] David Feldman, Human Dignity as a Legal Value -Part I, 1999 Pub. L. 682, 690-91.
[32] Palko v. Connecticut, 302 U.S. 319, 325 (1937).
[33] Centre for Child Law v Governing Body of Hoërskool Fochville & another [2015] ZASCA 155;
[2015] 4 All SA 571 (SCA) para 23
[34]Director of Public Prosecutions, Transvaal vs Minister of Justice and Constitutional Development

& others 2009 (2) SACR 130 (CC) paras 130 and 132; S v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18; 2008 (3) SA 232; 2007 (2) SACR 539 (CC) para 14-26
[35]See S vs M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232; 2007 (2)
SACR 539 (CC) para 15, the Constitutional Court of South Africa

[36] The US Supreme Court has consistently upheld restrictions on First Amendment freedoms to
combat the ‘extraordinary problem’ of child pornography (see Osborne v Ohio 495 US 103 (1990); New
York v Ferber (above)).
[37] See R v O’Connor [1995] 4 SCR 411; (1995) 33 CRR (2d) 1; 103 CCC (3d) 1 (SCC), a case
concerned with disclosure of therapeutic records of a sexual assault complainant, the Supreme Court of
Canada
[38] Particularly sections 4 (2), 13, 18, 19, 22 and 76
[39] Cap 75, Laws of Kenya
[40] {2014} eKLR
[41] SC Petition 2 of 2012
[42] Supra

[43] Von Hannover v. Germany (no. 2), Grand Chamber judgment of 7 February 2012, § 96
[44] https://definitions.uslegal.com/a/aggravated-damages/
[45]Mbogo & Another vs Shah{1968} EA 93
[46] V.K. Sircar, Compensation for Violation of Fundamental Rights, a new remedy in Public Law
Distinct
from relief of damages in tort, http://ijtr.nic.in/articles/art7.pdf
[47] Koigi Wamwere vs Attorney General{2015} eKLR
[48] As Dickson J said in Andrews v Grand & Toy Alberta Ltd(1978) 83 DLR (3d) 452, 475-476, (cited
by this court in Heil v Rankin [2001] QB 272, 292, para 16)
[49]Mr. Dainius Zalimas, President of the constitutional Court of the Republic of Lithuania, The Rule
of Law and Constitutional Justice in the Modern World, 11-14 September 2017, Vilnius, Liuthania,
delivering a speech at the Farewell Dinner for the 4th Congress of the World Conference on
Constitutional Justice, 13th September 2017.
[50] Act No. 8 of 2001

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M W K v another v Attorney General & 3 others [2017] eKLR

IN THE HIGH COURT OF KENYA AT NAIROBI, MILIMANI LAW COURTS

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 347 OF 2015

In the matter of The Constitution of The Republic of Kenya

The CRADLE-the Children Foundation..............................................................2ndPetitioner

The Attorney General.....…………...……………………………….................1stRespondent

The Inspector General of Police.....................................................................2ndRespondent

Director of Public Prosecutions.....................................................................3rdRespondent

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I.P. Inspector Agnes Magiri..............................................................................4thRespondent

Police Constable Anne Ogindo.......................................................................5thRespondent

Independent Medical Lega Unit (IMLU)......................................................Interested Party

The Redress Trust............................................................................................Amicus Curiae

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The Petitioners' case

First Respondents' Replying Affidavit

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Second and Third Respondents Response to the Petition

Fourth Respondents Response to the Petition

First Petitioners oral evidence

Medical evidence and the First Petitioners Parents' evidence

The Fourth Respondents evidence

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31. Also relevant are the following observations:-

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Issues for determination

Applicable legal framework

41. Article 1 of the Universal Declaration of Human Rights, 1949 provides:-

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(i) for the shortest appropriate period of time; and

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weighing up of the right to privacy and other factors is necessary.

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Whether the Petitioner is entitled to damages

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money can provide true restitution.

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to be subjected to degrading treatment.

Signed, Dated, Delivered at Nairobi this 18th day December 2017

[1]Act No. 8 of 2001

[2] Article 156 of the Constitution

[3] Article 157 of the Constitution

[4] Baricho Magistrates Criminal Case Number 1262 of 2015

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[12]Richard B. Lillich, The Human Rights of Aliens in Contemporary International Law, 41

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[18] {1995} ZACC 3; 1995 (3) SA 391(CC) in para [328].

[20]1996 (2) SA 751 (CC) at [711.

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