BA v Attorney General & 2 others (Petition E503 of 2023) [2025] KEHC 19223 (KLR) (Civ) (4 December 2025) (Judgment)
Neutral citation:
[2025] KEHC 19223 (KLR)
Republic of Kenya
Petition E503 of 2023
B Mwamuye, J
December 4, 2025
IN THE MATTER OF ARTICLES 19, 20, 21, 23, 28, 31, 49 AND 50 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF SECTIONS 6, 7, 8, 11, 15 AND 73 OF THE HEALTH ACT, NO. 21 OF 2017
AND
IN THE MATTER OF SECTIONS 3, 4, AND 6 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, NO.4 OF 2015
AND
IN THE MATTER OF SECTIONS 25A, 26 AND 29 OF THE EVIDENCE ACT, CAP 80
AND
IN THE MATTER OF SECTIONS 21 AND 24 OF THE CRIMINAL PROCEDURE CODE, 2018
Between
BA
Petitioner
and
Attorney General
1st Respondent
Inspector General of Police
2nd Respondent
Office of the Director of Public Prosecution
3rd Respondent
Judgment
1.The Petitioners approached this court vide Petition dated 8th December 2023 seeking protection for contravention of Articles 49, 49(1) as read with Section 25A, 26 and 29 of the Evidence Act, Articles 50, 29, 43(1)(A), 26, 28 and 31 of the Constitution by the Respondents.
2.The Petitioner is therefore seeking the following orders: -a.A declaration that the arrest and prosecution of the Petitioner was done unlawfully, illegally so arbitrarily and in flagrant violation of the entire body of rights enshrined under provisions of Articles 49 and 51 of the Constitution of Kenya 2010 regarding and respecting the right of arrested persons, persons held in custody respectively, as was the case with the Petitioner herein.b.A declaration that the actions of the 2nd Respondent in subjecting the Petitioner to an examination in the presence of a police officer was a violation of the provisions of Articles 28, 31 and 43 of the Constitution on the rights to dignity, privacy and health, and to her utter detriment.c.A declaration that failure by the 2nd Respondent to facilitate emergency medical treatment for the Petitioner was a violation of the Provisions of Article 43 of the Constitution on the right to Health.d.Remedies in the nature of general and aggravated damages by the Respondents for the breaches of the Petitioner’s fundamental and inalienable Constitutional Rights as pleaded in the body of the present Petition.e.Costs of the Petition, together with any other reliefs and remedies the Court will deem just and expedient to grant in the circumstances and as by law ordained.
3.In support of the Petition, the Petitioner filed a Supporting Affidavit sworn by BA and dated 8th December 2023 to which she averred that on 6th March 2016 at around 6 O’clock two females namely Jane Fiver and one Lydia with whom she has had previous personal issues accosted her at her residence and illegally accused her of throwing and dumping the content of a fetus at a trench.
4.She further averred that on the same date at around 8:00 pm or thereabout, police officers from the nearby Parklands police station, confronted her at her home and unlawfully and illegally whisked her to the police station accusing her of procuring an illegal abortion and illegally detained her.
5.She states that while at the Police station, one of the female police officers threatened to take off her clothes and strip her naked to check and affirm if she was bleeding. She informed the police officer that she had miscarried earlier on and that is when one Mary Mwende took her to Kenyatta National Hospital for check-up and in total breach of her privacy insisted on staying at the doctor’s office while conducting the medical investigation. She affirmed that it took the doctor’s intervention that the said police officer was compelled to leave.
6.The Petitioner affirmed that on 7th March 2016 she was arraigned at Kibera Law Courts where the police officer requested for seven (7) further days to complete investigations which was granted by the Court. According to the Petitioner while in custody, she was still bleeding and the situation exacerbated her HIV status and when she requested for access of her medication, her request was denied. She averred that a few days later the OCS observed her dire situation and facilitated purchase of her medication.
7.She contends that she was arraigned in court on 25th March 2016 where she took plea but unfortunately the matter proceeded for a period of seven (7) years when she was acquitted for lack of evidence.
8.She further contends that the actions by the Respondents were a gross violation of her constitutional rights to a just, fair and expedited hearing and on account of the ordeal, she prays for reparation from this Honourable Court.
9.In opposition to the Petition, the 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 28th October 2024 on the grounds that this Honourable Court lacks jurisdiction to hear and determine proceedings that fall under the ambit of civil division as claim for malicious prosecution and therefore offends the provisions under Section 19 of the Civil Procedure Act.
10.They equally averred that the suit has been brought in this court with clear disregard to the above provisions and is an abuse of the due process of this court.
11.The 1st and 2nd Respondents further filed Grounds of Opposition dated 5th March 2025 to which they contend that the Petitioner has failed to provide sufficient specificity regarding the alleged violations of their fundamental rights and freedoms since the Petitioner is unknown as they have failed to disclose their names as well as annexing any particulars/ details regarding the alleged constitutional violations, failing to meet the standards set in Anarita Karimi Njeru v Republic (1979) eKLR and prejudicing the Respondents who are unable to respond to the claim succinctly.
12.They further averred that the Petition has been unable to sufficiently prove the nature and manner in which the Respondents have allegedly violated her rights or any of the provisions of the Constitution. They relied on the case of Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR which stated that the Petitioner has both the legal and evidential burden.
13.The 3rd Respondent filed Grounds of Opposition dated 18th September 2024 opposing the Petition on the grounds that the Petition lacks clarity and precision in setting out the declarations in relation to the 3rd Respondent.
14.They further asserted that there is uncertainty of pleadings, the Petition does not meet the threshold under Section 107 of the Evidence Act, the 3rd Respondent has no capacity to furnish the Honorable Court with the status of prosecution and the Petitioner’s case in the circumstances of non-disclosure and finally that the Petition is bad in law and devoid of any merits and a classical description of an abuse of the due process thus should be dismissed with costs.
15.The Petition was canvassed by way of written submissions, and in compliance all parties filed and served their submissions.
Petitioner’s Submissions
16.The Petitioners filed submissions dated 26th February 2025 to which the Petitioner’s Counsel analyzed two issues for determination namely:i.Whether there was a contravention of the Petitioner’s rights as an arrested person; andii.Whether there was a contravention of the Petitioner’s right to fair trial.
17.On the first issue, they submitted that the Petitioner was denied her rights under Article 49 of the Constitution as the Petitioner never knew she was arrested for concealing birth but later charged with the offence of procuring an abortion. The Petitioner’s Counsel contends that failure to inform a person reasons for arrest, the right to remain silent, the consequences of remaining silent and/or denying an arrested person legal representation can even lead to quashing of a criminal proceeding and subsequent acquittal of an accused person.
18.They assert since the Petitioner was denied all the rights under Article 49 of the Constitution, she seeks due justice before this Honourable Court. Reliance was placed on the following cases: Geodffrey Kipngetich Korir v Republic (2012) eKLR, Ruth Wendy Wambui v Republic (2016) eKLR and Mini Cabs & Tours v Attorney General & 2 Others (Petition 450 of 2019) (2022) KEHC 11207 (KLR) (Constitutional and Human Rights) (16 June 2022).
19.On the second issue, the Counsel to the Petitioner submitted that the Petitioner was treated as a guilty person buttressed by the neglect she was treated to by the police officers in violation of Article 50 of the Constitution and the rule of natural justice that one is presumed innocent until proven guilty. Reliance was placed on the Supreme Court case of Joseph Lendrix Waswa v Republic (2020) eKLR and the case of PAO & 2 Others v Attorney General; AIDS Law Project (Interested Party) (2012) eKLR.
20.They further contend that the acts of the 2nd Respondent in neglecting, rejecting and/or failing to provide the Petitioner with the requisite drugs for her condition amount to a breach of the right to life and also watching the Petitioner bleed while in custody, threatened and infringed on the Petitioner’s right to life.
1St And 2Nd Respondents’ Submissions
21.The 1st and 2nd Respondents filed written submissions dated 5th March 2025 to which they analyzed three issues for determination namely:i.The Petitioner has failed to provide sufficient specificity regarding the alleged violations of their fundamental rights and freedoms.ii.The Petitioner has been unable to sufficiently prove the nature and manner in which the Respondents have allegedly violated her rights or any of the provisions of the Constitution.iii.The claim laid out by the Petitioner is one for malicious prosecution and tortious liability which can be adequately canvassed in the civil division of the High Court of Kenya.
22.On the first issue, they submitted that Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules, 2013) (Mutunga Rules) provides that a Petition shall disclose the Petitioner’s name and address which the Petitioner in the instant matter has failed to do to enable the Respondents herein adequately respond to the allegations raised.
23.They averred that the Respondents have a right to know who is bringing the suit against them and the right to respond to the allegations raised. Reliance was placed on JMK & 3 others v Kenyatta University Teaching, Referral and Research Hospital (KUTRRH) & 3 others [2020] eKLR and Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission and 3 others [2013] eKLR.
24.On the second issue, the 1st and 2nd Respondents stated that the Petitioner has been unable to clearly demonstrate that her rights have been violated by the Respondents and has also failed to adduce evidence any form of evidence that would support or corroborate the allegations against them. They relied on the case of Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR.
25.They further averred that facts must be proven to satisfy the court of the fact that the Petitioner in this case has done no such thing. According to the 1st and 2nd Respondents, the Petitioner herein has not annexed any document to support her allegations nor did she avail any witness to corroborate her evidence. They assert that the Petitioner did not tender any oral evidence and therefore failed to discharge the burden of proof to the requisite standard thus the instant Petition should fail based on that ground. Reliance was placed on the decision of Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR and the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR).
26.On the third issue, the 1st and 2nd Respondents submitted that it is settled that the courts will not consider a constitutional question unless the remedy is dependent on it and where a matter can be decided without recourse to the Constitution, the Constitution should not be involved at all. They assert that the Petitioner herein took the route of constitutional litigation assuming the standard of proving their claim will be less than that in an ordinary claim or perhaps they sought to evade the issue of limitation of time. In any event, similar standard of proof apply which they failed to meet. They relied on the following cases: Peter M. Kariuki v Attorney General [2014] KECA 713 (KLR), Dickson Chebuye Ambuyi v Natural Police Service & another; Peter Sifuna Wesonga & another (Interested Parties) [2020] KEHC 870 (KLR), Kiambu County Tenants Welfare Association v Attorney General & another [2017] eKLR and finally the case of Ann Njoki Kinyajui v Barclays Bank of Kenya Ltd [2015] eKLR.
3rd Respondent’s Submissions
27.The 3rd Respondent filed written submissions dated 28th February 2025 where they analyzed two issues for determination namely:i.Whether the 2nd and 3rd Respondent have any duty in the matter raised.ii.Whether the Petitioners have met the required threshold for grant of the orders sought
28.On the first issue, they averred the Petition does not disclose any cause of action against the 2nd and 3rd Respondent herein. They further asserted that it is an established principle that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the rights with precision and how the same have been or will be infringed in respect to him. According to them, the Petitioner has not set out with precision the manner in which the 2nd and 3rd Respondents have infringed their fundamental rights and freedoms to warrant the intervention of this Honourable Court. Reliance was placed on the Australian case of William and Others v Spautz [1993] 2 LRC 659 at 667 and the decisions in the case of Leonard Otieno v Airtel Kenya Limited [2018] eKLR, Anarita Karimi Njeru v Republic (KLR) [1979] KLR 154 and the Court of Appeal’s decision in Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR.
29.On the second issue, the 3rd Respondent submitted that the Petitioner has not demonstrated a prima facie arguable case on breach of any Constitutional provisions or fundamental and human rights or any other provisions of the law by the 3rd Respondents. In support, they cited the case Apollo Mboya v Attorney General & 3 others; Kenya National Commission on Human Rights (Interested Party) & another [2019] eKLR.
Petitioner’s Rebuttal Submissions To 1st & 2nd Respondents’ Submissions
30.The Petitioner filed rebuttal submissions dated 12th May, 2024 where they submitted that this court gave directions that the application seeking anonymity of the Petitioner together with the Petition itself be canvassed vide written submissions. They assert that it is trite that Petitions in the Kenyan jurisdiction and beyond are competently disposed off through written submissions and the present one shouldn’t be an exception.
31.They aver that as per the court’s proceedings on 13th December, 2024 a consent was agreed upon at the request of the respective parties that in order to enable them file their responses, the Counsels for the Petitioner divulges her names and identities to enable the Respondents obtain proceedings from the criminal court on strict conditions of privacy. According to the Petitioner, the said consent was thereafter adopted and that the identity of the Petitioner as Beatrice Makokha Achieng are well known to the Respondents.
32.The Petitioner contends that the Respondents do not deny the prosecution of the Petitioner in Kibera Criminal Case No. 1255/2016, and it is her case that the entire body of facts building the petition are totally uncontroverted thus the Petitioner’s case is and remains proven beyond an iota of doubt.
Analysis And Issues For Determination
33.The only issue that arises for determination is whether this Petition offends the Principle of Constitutional Avoidance.
34.The gravamen of this Petition is that the Petitioner’s arrest, detention and prosecution by the Respondents was unjustified and thus violated the Petitioner’s constitutional rights.
35.The 1st and 2nd Respondents filed a Notice of Preliminary Objection challenging the jurisdiction of this court on grounds that the Petitioner’s case is one that falls under the ambit of civil division as claim for malicious prosecution and therefore offends the provisions under Section 19 of the Civil Procedure Act.
36.The case of Garden Square Ltd v Kogo & Anor 2000 (KLR) 1695, Ringera J (as he then was) stated that what constitutes a true preliminary objection is a pure point of law which if successfully taken would have the effect of disposing of the suit or application. This was in line with the decisions of the then Court of Appeal for East Africa in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 in which Sir Charles Newbold, the President of that court stated as follows:
37.Much more recently, the Supreme Court again considered the position of parties resorting to the use of Preliminary Objections and pronounced itself as follows in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR: -
38.It is trite that whether or not this court has jurisdiction to determine the present petition is a pure point of law that qualifies as a preliminary objection. The court need not go beyond the pleadings by the Petitioner to determine this issue, thus bringing the objection raised within the parameters of what constitutes a preliminary objection as set out in Mukisa Biscuit case (supra).
39.It is the duty of this court to satisfy itself in a matter that it is possessed of jurisdiction otherwise it may end up acting in vain. The jurisdiction of this court in dealing with Constitutional Petitions is properly invoked once a Petition that complies with the constitutional and legal requirements is lodged. The Court must therefore, decline any invitation by a Petitioner to deal with an alleged Petition which falls short of the laid down parameters on Constitutional Petitions.
40.The Supreme Court in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others had the following to say on Constitutional Petitions: -
41.In addition, the Supreme Court in the case of Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [2012] eKLR went further to discuss the issue of jurisdiction in the following terms:
42.In the case of Owners of Motor Vessel ‘Lilian S’ v Caltex Oil Kenya Limited [1989] KLR 1 Nyarangi J. (as he then was) held:
43.The threshold of a constitutional petition was clearly formulated in the case of Anarita Karimi Njeru vs the Republic (1976-1980) KLR 1272. It should be noted that the aforesaid case has been relied upon from time to time again to demonstrate the said threshold.
44.In a constitutional petition, a party is not supposed to merely cite constitutional provisions. He/ she must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated or threatened to be violated and the manner of the violation and/or threatened violation and state some particulars of alleged infringement to enable the Respondent to be able to respond to each allegation accordingly.
45.It is important to note that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware however of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence all other laws give full expression to the ideals of the Constitution until found to be inconsistent to it.
46.Flowing from above, it is clear that one of the circumstances which would deprive the Petitioner hearing before a constitutional court is the doctrine of constitutional avoidance, which the 1st and 2nd Respondents herein have invoked.
47.The fundamental question that must be asked is whether this dispute as presented is in reality a constitutional dispute. The facts as pleaded in my view present a dispute that is allegedly based on unlawful arrest, confinement and malicious prosecution. Though these allegations can be framed as constitutional violations, they may very well support a tortious claim of false imprisonment and malicious prosecution but the Petitioner appears to have deliberately avoided taking that route.
48.For malicious prosecution, all the Petitioner would have been required to prove is the presence of four elements, namely the Respondents instituted the prosecution against the Petitioner, the prosecution ended in her favour, the prosecution was instituted without reasonable and probable cause and that the prosecution was actuated by malice. The court in Bethwel Omondi Okal v Attorney General & another [2018] eKLR reiterated these principles as follows:
49.In regard to false imprisonment, all what the Petitioner would have been required to demonstrate is denial of personal liberty by acts willfully done by another person to restrain or confine her in a restricted place without her consent and without any lawful cause and the fact that she was aware of the said confinement.
50.This brings into focus the doctrine of Constitutional avoidance which has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved. The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius and Anor 2001 (2) ZLR 501 (S) to which Ebrahim JA stated:
51.The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR that the principle of avoidance means that a court will not determine a constitutional issue when a matter may properly be decided on another basis.
52.It is important to note that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware however of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence all other laws give full expression to the ideals of the Constitution until found to be inconsistent to it.
53.The Constitutional question is a vital question in determining whether the petition herein is properly before this Honourable Court. In the case of CNM v WMG [2018] eKLR where the court weighed in on the constitutional question as follows:
54.Under the doctrine of constitutional avoidance; when a party has a remedy provided under the legislation, they must follow the path to exhaustion before petitioning a constitutional court. This was stated in KKB v SCM & 5 others [Constitutional Petition 014 of 2020] [2022] KEHL 289 [KRR] which held thus:
55.In the instant petition, this court considers the allegations raised heavily lie in the tort of malicious prosecution. The Petitioner’s cause of action could have adequately been remedied by conventional torts law not as a constitutional grievance. I find the words in the Court of Appeal in James Kanyiita Nderitu v Attorney General and the Director of Public Prosecution (2019) eKLR relevant in this matter. The court in dismissing a similar matter stated:
56.The Petitioner has not demonstrated any violation of her rights and has not attached any evidence on the same. I believe that the dispute is of a civil nature and should therefore proceed at the civil court.
57.Consequently, this court is satisfied that the grievances raised in this Petition are ordinary civil disputes (tortious claims) that the Petitioner is masking as constitutional grievances. Applying the doctrine of constitutional avoidance, this court finds that it cannot consider the same as a constitutional petition and for the foregoing reasons, this Court issues the following orders:A.The Petitioner’s Petition dated 8th December, 2024 is hereby dismissed.B.The Grounds in the Notice of Preliminary Objection dated 28th October, 2024 succeeds to the extent that this court lacks Jurisdiction to entertain this petition.C.Each party to bear their own costs of proceedings.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025......................................BAHATI MWAMUYE MBSJUDGEIn the presence of: -Counsel for the Petitioner – Mr. OdhiamboCounsel for the 1st and 2nd Respondents – No appearanceCounsel for the 3rd Respondent - Ms. NtaboCourt Assistant – Ms. Lwambia