REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BOMET PETITION NO. 4 OF 2017 IN THE MATTER OF ARTICLES 1, 2, 3, 10, 19, 20, 21, 22, 23, 24, 25, 27, 35, 40, 159, 160, 258, 259 OF THE CONSTITUTION OF KENYA -ANDIN THE MATTER OF THE NATIONAL POLICE SERVICE COMMISSION ACT -BETWEENDANIEL TERER.................................................................PETITIONER THE DCI, TRANSMARA........................................1ST RESPONDENT INSPECTOR GENERAL OF POLICE..................2ND RESPONDENT JUDGMENT In the petition dated 29th day March 2017, the petitioner prays for the following orders: (a) A declaration that the Respondents are bound by the provisions of the law and the constitution to wit rule of law, democracy, integrity, transparency, accountability. (b) A declaration that the Respondents intention to confiscate the 9 heads of cattle and subsequent handing them over to a 3rd party is illegal and unconstitutional. (c) A declaration that the intended arrest and sacking of the petitioner by the Teachers Service commission at the behest of the Respondent is ultra-vires malicious, illegal, unprocedural and a breach of fundamental rights and freedoms as provided for in the constitution. (d) An order to compel the Respondent to comply with the constitution in a procedural transparent and legal manner and an order to compel the Respondent to return the 9 heads of cattle to the petitioner. The petitioner alleges that his rights were violated. At paragraph 12 of his petition it is stated that “to the extend that the 1 st Respondent confiscated 9 heads of cattle from the petitioners boma at Masindoni village Bomet County on 12 December 2016 after losing track of the stolen cattle and subsequently handing them over to a 3rd party violates article 30 of the Constitution.
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13. To the extend that the Respondent intends to arrest and charge the petitioner with a criminal offence after confiscating and handing over the petitioners cattle to a 3 rd party is legally wrong and the arrest is propelled by malice and ulterior motives and hence violates the constitution. 14. To the extend that the Respondent has written letters to the petitioner’s employer asking the employer to sack the petitioner violates the constitution. It is noted from the outset that the petitioner has not enjoined the Attorney General and the DPP as Respondents in this Petition. The petitioner is seeking orders against the Teachers Service commission. He has also not enjoined the Teachers Service Commission as Respondents in this petition. His case revolves around 9 heads of cattle allegedly confiscated by police on 12th December 2016 and handed over to one Daniel Ololngojine a police officer on 18/12/2016. Ideally if there was a case of stealing of stock. The case should have been investigated and the file handed over to the DPP for further instructions. In the present case it appears that the legal process was not followed before handing over the allegedly stolen cattle to a 3rd party. Ownership had to be proved in a court of law. If the police intend to charge and prosecute the petitioner they ought to follow the laid down procedure. The confiscated head of cattle ought to be in custody of a neutral party. Photographs should be taken and proper investigations carried out. By reason of the foregoing and owing to the fact that the AG though not enjoined in this petition participated in it, I grant orders in terms of prayer (a) (b) (d) to the extent that the Respondent has to comply with the constitution. The 9 head of cattle to be returned to the petitioner if there is no prosecution within 21 days from the date of this judgment. Judgment delivered dated singed this 2/3/2018 in the present of Mr. Mugumya holding brief petitioner for Mr. Barasa. M. MUYA JUDGE 2/3/18 Mr. Mugumya – We pray that we be provided with the ruling of the court. Court – Certified copies of the ruling to be furnished to the Respondent and the petitioner and DPP. M. MUYA JUDGE 2/3/18
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