Coi & 1 other v Chief Magistrate Ukunda Law Courts & 4 others
The bottom line
#Kenya's Court of Appeal ruled that forced anal examinations ordered to prove a Penal Code offence were unconstitutional, and the resulting evidence cannot be used at trial.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness and reasonableness of the compelled medical and anal examinations
The examinations were unconstitutional, unreasonable and totally unnecessary; the subordinate court exceeded its mandate under Section 36 of the Sexual Offences Act by ordering them to prove an offence under the Penal Code, without any proper basis
Section 36 empowers a court to direct samples only for offences under the Sexual Offences Act and only judiciously. The examinations were aimed at establishing an offence under Section 162(a) of the Penal Code, for which anal examination had no probative value. The appellants were not arrested in the act, there was no complainant and no reasonable suspicion; no proper basis for the order was laid. Consent cannot cure an illegal order, and in any event was not voluntary in the prevailing circumstances.
Admissibility of evidence from the unconstitutional examinations
The admission of the examination results in the criminal proceedings violated the appellants' right against self-incrimination and their right to a fair trial under Article 50; such evidence must be expunged
Pre-hearing investigations become unconstitutional where they obtain evidence unlawfully or infringe the rule against self-incrimination. Having found the examinations illegally ordered and conducted, the court held that admission of the resulting evidence offended the appellants' constitutional rights and that the evidence should be expunged from the criminal proceedings.
Alleged violations at Kwale Prison
The High Court could not be faulted for not determining the claim because it was not pleaded in the petition
Apart from depositions in the first appellant's affidavit, the appellants neither pleaded nor sought declaratory orders or damages for the alleged prison violations. Pleadings exist to define issues with certainty and give notice to the opposite party; a party cannot expand issues at will.
Legal principles established
#- A subordinate court may only order a compelled medical examination of an accused under Section 36 of the Sexual Offences Act for offences committed under that Act, and only on a proper evidentiary basis; such an order issued to establish an offence under the Penal Code is unconstitutional
- Consent, even by counsel, cannot validate an illegal order for compelled medical examination
- Admission of evidence obtained through an unconstitutional compelled examination violates the right against self-incrimination and such evidence must be expunged
- A court cannot determine or grant relief on a claim of rights violation that was not pleaded
Court orders
#- 1.The judgment and decree of the High Court dated 16th June 2016 is set aside
- 2.A declaration that the respondents' conduct in subjecting the petitioners to anal examinations violated the petitioners' rights under Articles 25, 27, 28 and 29 of the Constitution
- 3.A declaration that the use of evidence obtained through anal examinations of the petitioners in criminal proceedings against them violates their rights under Article 50 of the Constitution
- 4.The appellants are awarded costs of the appeal as against the 4th respondent
- On appeal from
- High Court of Kenya at Mombasa
- Constitutional & Human Rights Division Petition No. 51 of 2015
- Jurisdiction invoked
- First appeal from the High Court sitting in constitutional and human rights jurisdiction (Article 165 and 23, Constitution of Kenya 2010); appeal as of right under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Coi & 1 other v Chief Magistrate Ukunda Law Courts & 4 others", Case Analysis (2018). Civil Appeal No. 56 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/15/eng@2018-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.