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Court of AppealAllowedCivil Appeal No. 118 of 2015· [2018] KECA 535 (KLR)

Muchiri Kiuma Maina v Attorney General [2018] KECA 535 (KLR)

Court of Appeal
23 May 2018
DMD. K. MusingaFSF. SichaleSKS. ole Kantai
2,532 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that police cannot be used to fight civil disputes, and wrongful arrest entitles victims to damages.

What this practically means

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Executive summary

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The appellant, a director and secretary of the dissolved Kieni East Farmers Company Limited, petitioned the High Court alleging violation of his constitutional rights after he was arrested without warrant, detained for about three days at Kinamba Police Station, escorted by armed officers to his home where company documents were seized, and released without charge. The police justified the actions by reference to investigations into complaints that company plots were being irregularly allocated and sold through forgery. The High Court (Emukule, J.) dismissed the petition, holding the arrest and seizure lawful in furtherance of investigations. On appeal, the Court of Appeal allowed the appeal. It held that the underlying complaint was of a purely civil nature, concerning a dispute between members of a company over its assets, and that the civil courts were the proper forum. Applying its earlier decisions in Kamau Mucuha v Ripples Limited and Commissioner of Police v Kenya Commercial Bank, the court held that involving the police in such a dispute was an abuse of power; no good reason had been presented to justify the arrest, detention and search. The appellant's fundamental rights were therefore violated. The court set aside the High Court orders and substituted an order allowing the petition, but since damages had never been assessed, it remitted the matter to the High Court for assessment of general damages, and awarded the appellant costs of the appeal and below. The binding proposition for lower courts is that the criminal justice process must not be used as a pawn in civil disputes.

Key legal issues

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01

Use of police/criminal process in civil disputes

Holding

The police involvement in a dispute between members of a company over its assets was unjustified; such disputes belong in the civil courts.

Reasoning

The complaint against the appellant concerning alleged irregular allocation and sale of company plots was civil in nature. The civil courts are well equipped to handle such matters. Neither the complainant nor any fraud was actually established, and no action was ever taken against the appellant after seizure of the company documents. Enlisting police to arrest, detain and search a party in such a dispute is an abuse of police power.

p. 3
02

Violation of fundamental rights by arrest, detention and search

Holding

The appellant's arrest without warrant, detention for about three days, and armed search of his home with seizure of company documents violated his fundamental rights and freedoms.

Reasoning

It was not denied that the appellant was arrested and detained for about three days and that documents were taken from his house. No good reason was presented justifying the police conduct. The Judge erred in holding that the arrest and seizure were lawful exercises of the police investigative mandate, and should have found for the appellant.

p. 3
03

Entitlement to damages

Holding

The appellant was entitled to general damages for the humiliation and embarrassment suffered, but as the High Court Judge had not assessed damages, the matter had to be remitted for assessment.

Reasoning

The trial Judge did not assess the damages he would have awarded had the petition succeeded, though it was his duty to do so. In the absence of such assessment, the appellate court could not quantify general damages itself and remitted the question to the High Court.

p. 3

Legal principles established

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  • Police powers of investigation and arrest must not be used to resolve purely civil disputes; doing so violates the constitutional rights of the person arrested and detained.
  • A person arrested without warrant and detained without charge, with property seized in furtherance of what is essentially a civil dispute, suffers a violation of fundamental rights and is entitled to the prayers sought in a constitutional petition.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the learned Judge set aside and substituted with an order allowing the petition
  3. 3.Matter remitted to the High Court for assessment of damages
  4. 4.Appellant granted costs of the appeal and of the proceedings below

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 36(1)
  • Constitution of Kenya, 2010Article 40(1)
  • Constitution of Kenya, 2010Article 50(1 & 2)
  • Criminal Procedure CodeSection 193A
  • Civil Procedure RulesOrder 21 Rule 28

Cases cited (2)

  • Kamau Mucuha vs Ripples Limited
    Civil Application No. Nai. 186 of 1992 (NAI 77/92 UR)
  • The Commissioner of Police & Director of Criminal Investigation Department & Another v Kenya Commercial Bank Limited
    [2013] eKLR
On appeal from
High Court of Kenya at Nakuru
H. C. Petition No. 34 of 2011
Jurisdiction invoked
First appellate jurisdiction over the High Court (constitutional petition), Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muchiri Kiuma Maina v Attorney General [2018] KECA 535 (KLR)", Case Analysis (2018). Civil Appeal No. 118 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/535/eng@2018-05-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.