Mohamed Jillo Jarha v The Director of Public Prosecutions & 2 others

what he characterises as a systematic and orchestrated abdication of duty by institutions charged with the administration of criminal justice. His complaint is directed at the alleged omission by the police and the prosecutorial authorities to investigate and prosecute his former spouse, Asha Josephine Telewa, for the offence of bigamy. He contends that such omission was not merely inadvertent, but amounted to a culpable, biased, and ultimately unconstitutional exercise of discretion on the part of the 1 st and 2nd Respondents. 2. The Petitioner’s pursuit of redress has been protracted and exacting, tracing its origins to the year 2017. It has traversed multiple fora, including a police station within Embakasi, the offices of the Director of Public Prosecutions, and the subordinate courts through an application seeking leave to institute a private prosecution. Disenchanted by what he perceives as persistent inaction, coupled with instances of active obstruction, the Petitioner now invokes the jurisdiction of this Court, seeking its intervention and the vindication of his constitutional rights. 3. The Petitioner therefore seeks the following reliefs from this court: a. A declaration that the 1st Respondents acted in contravention of Articles 10, 20, 21, 27,28,29,45,47,48,50,73,75 and 157 of the Constitution of the Constitution of Kenya, 2010. b. A declaration that the 2nd Respondents acted in contravention of Articles 10, 20, 21, 27,28,29,35,45,47,48,50,73,75 and 244 of the Constitution of the Constitution of Kenya, 2010. HCCHRPET. NO. E283 OF 2024 JDT P a g e 2 | 29

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c. Certiorari quashing the 1st Respondents letter dated 11th February 2021. d. An award for Compensation as may be assessed by the court for the gross violation of the Petitioners constitutional rights as specified in this Petition. e. Aggravated and exemplary damages. f. Costs of the Petition. g. Any other relief. 4. The Petition is strenuously opposed. The 1st Respondent, the Director of Public Prosecutions, asserts the constitutional independence of his office and maintains that the decision not to institute criminal proceedings was a lawful and proper exercise of his mandate under Article 157 of the Constitution, duly informed by considerations of public interest. The 2nd and 3rd Respondents, namely the Inspector General of Police and the Attorney General, contend that the Petition is fatally deficient, being vague, frivolous, vexatious, and an abuse of the process of the Court. They argue that it falls short of the requisite standard of constitutional precision and, in substance, seeks to transmute a private familial dispute into a public law claim an issue, in their view, more appropriately ventilated before the Kadhi’s Court. 5. The central question falling for determination is whether the impugned acts and omissions of the State Respondents rise to the level of a violation of the Petitioner’s fundamental rights and freedoms as guaranteed by the Constitution. In resolving this question, the Court is called upon to navigate the delicate interplay between, on the one hand, the deference owed to the HCCHRPET. NO. E283 OF 2024 JDT P a g e 3 | 29

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prosecutorial discretion of the Director of Public Prosecutions and the operational independence of the police, and, on the other, this Court’s constitutional mandate under Article 165(3)(d)(ii) to supervise State organs and ensure fidelity to the Constitution. This Judgment shall accordingly proceed by setting out the factual background, summarising the respective positions of the parties, distilling the issues for determination, and thereafter undertaking an analysis of each issue in light of the applicable constitutional and legal principles. BACKGROUND 6. The genesis of this dispute lies in a marriage. On 2 nd February 2006, the Petitioner, Mohamed Jillo Jarha, entered into a marriage with Asha Josephine Telewa under Islamic law at the Langata Mosque in Nairobi. The union was duly registered in accordance with the applicable law, and the marriage was blessed with two children. 7. The events giving rise to the present dispute crystallised in 2017, when the Petitioner discovered that Asha Josephine Telewa had allegedly contracted a second marriage with one Vincent Shamalla Amusala under the African Christian Marriage and Divorce Act. The Petitioner contends that this second union was contracted during the subsistence of his marriage, no decree of nullity or dissolution having been issued by a court of competent jurisdiction. He consequently formed the view that the conduct in question constituted the offence of bigamy, contrary to the Penal Code. HCCHRPET. NO. E283 OF 2024 JDT P a g e 4 | 29

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Acting upon this belief, the Petitioner undertook steps to verify the authenticity of the two marriages through the offices of the Registrar of Marriages in Kisumu and Nairobi, which, according to him, confirmed that both unions were duly recorded. Armed with this information, he reported the matter to Embakasi Police Station in 2017 and furnished the police with the relevant documentation, expecting that investigations would be undertaken and appropriate action taken. 8. What followed thereafter, according to the Petitioner, was a protracted cycle of inaction. He avers that his repeated inquiries into the status of the matter were met with assurances that investigations were ongoing, but without any tangible progress. The officer said to be handling the file was, he claims, persistently unavailable, and access to the file was restricted. Upon escalating the matter to the Officer Commanding Station, the Petitioner contends that he was met with remarks which he characterises as demeaning and unprofessional, including suggestions that he should “leave that woman alone.” He asserts that this conduct occasioned him considerable distress. 9. Dissatisfied with the apparent lack of progress, the Petitioner escalated the matter to the Office of the Director of Public Prosecutions by way of a formal complaint in June 2019, reiterating the evidentiary basis of his grievance. He avers that this communication did not elicit a response for an extended period. In the face of this inaction, he elected to pursue the avenue of private prosecution by filing an application for leave before the Chief Magistrate’s Court at Makadara. HCCHRPET. NO. E283 OF 2024 JDT P a g e 5 | 29

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10. The Petitioner takes particular exception to the conduct of the Director of Public Prosecutions in the context of those proceedings. Although the office had not initially been made a party, the trial court directed that it be served for purposes of providing a status report on the investigations. The Petitioner contends that, rather than confining itself to that role, the prosecutorial authority aligned itself with the intended accused person, Asha Josephine Telewa, in opposing the application, thereby, in his view, departing from its constitutional mandate. 11. Ultimately, the Director of Public Prosecutions communicated the decision to decline prosecution. The reasons advanced were, first, that such prosecution would not be in the public interest, particularly in light of the existence of children from the marriage; and second, that the dispute would be more appropriately addressed before the Kadhi’s Court, which is vested with jurisdiction over matters relating to marriage, divorce, custody, and matrimonial property under Islamic law. It is this decision, together with the antecedent conduct of the investigative and prosecutorial agencies, that precipitated the filing of the present Petition. THE PETITIONER’S CASE 12. The Petitioner’s case is that the acts and omissions of the 1st and 2nd Respondents occasioned a grave violation of his constitutional rights and fundamental freedoms. In his Petition, Supporting Affidavit, and written submissions, he sets out, with considerable particularity, the provisions of the Constitution he alleges to have been infringed. These include the right to HCCHRPET. NO. E283 OF 2024 JDT P a g e 6 | 29

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equality and freedom from discrimination under Article 27, the right to human dignity under Article 28, the right to freedom and security of the person, including freedom from psychological torture, under Article 29, the right to access information under Article 35, the right to fair administrative action under Article 47, the right of access to justice under Article 48, and the right to a fair hearing under Article 50. 13. The gravamen of the Petitioner’s complaint lies in the decision of the Director of Public Prosecutions to decline prosecution. He contends that the said decision was irrational, unreasonable, and procedurally unfair. In particular, he takes issue with the reasons advanced, namely the existence of children and the suggestion that the matter be pursued in a civil or religious forum, arguing that such considerations do not constitute legally tenable grounds for declining to prosecute an alleged criminal offence. He further asserts that, in so doing, the prosecutorial authority improperly assumed a determinative role, thereby misapprehending the scope of its constitutional mandate and the meaning of public interest. 14. In support of this position, the Petitioner invokes comparative and local jurisprudence, including Ramalingam v Attorney General [2012] SGCA 2, for the proposition that prosecutorial discretion, though broad, is not absolute and must be exercised within the confines of the law and public interest. He further relies on Carlin v DPP (105/2008) to contend that inconsistencies or reversals in prosecutorial decision-making may implicate the integrity of the process. HCCHRPET. NO. E283 OF 2024 JDT P a g e 7 | 29

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15. With respect to the conduct of the police, the Petitioner alleges that the failure to undertake meaningful investigations, the restricted access to the investigation file, and the use of demeaning and unprofessional language by a senior officer amounted to a violation of his constitutional rights, particularly the right to dignity and fair administrative action. He invokes the constitutional obligations imposed upon the police under Article 244, and places reliance on S v Makwanyane [1995] ZACC 3 for the centrality of human dignity as a foundational constitutional value. 16. The Petitioner ultimately contends that, in the circumstances, the evidential burden shifted to the Director of Public Prosecutions to justify the impugned decision, as articulated in Maina & 4 others v Director of Public Prosecutions & 4 others [2022] KEHC 15 (KLR). He argues that, in the absence of a substantive rebuttal, that burden remains undischarged. He accordingly invites the Court to grant the reliefs sought, including an award of damages for the alleged violation of his rights. THE 1ST RESPONDENT’S CASE 17. The 1st Respondent, the Director of Public Prosecutions, opposes the Petition through Grounds of Opposition and written submissions. The cornerstone of his case is the constitutional independence of his office as guaranteed under Article 157 of the Constitution. He maintains that the decision whether or not to institute criminal proceedings lies within his exclusive mandate, and that HCCHRPET. NO. E283 OF 2024 JDT P a g e 8 | 29

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judicial interference with such discretion is only warranted in the clearest and most exceptional of circumstances. 18. It is the 1st Respondent’s position that the impugned decision was arrived at lawfully, upon due consideration of the evidential threshold, the public interest, and the broader interests of the administration of justice. In particular, he defends the decision not to prosecute Asha Josephine Telewa on the basis that such prosecution would not serve the public interest, especially in light of the familial context and the existence of children. He further contends that the Petitioner had, and indeed pursued, an alternative remedy through private prosecution, thereby rendering the present proceedings premature. 19. It is the 1st Respondent’s submission that, as affirmed in David Kipruto Chingi & Another v Director of Public Prosecutions & 2 others [2016] eKLR and Tumumu Njunge v Director of Public Prosecutions & 2 others [2016] eKLR, the exercise of prosecutorial discretion ought not to be lightly interfered with by the courts, save where it is shown that such discretion has been exercised in contravention of the Constitution or the law. On that premise, the 1st Respondent urges this Court to decline the invitation to intervene. THE 2ND AND 3RD RESPONDENTS’ CASE 20. The 2nd and 3rd Respondents, the Inspector General of Police and the Attorney General, oppose the Petition on several fronts. They begin by invoking Article 245(4) of the Constitution, contending that the Inspector General enjoys HCCHRPET. NO. E283 OF 2024 JDT P a g e 9 | 29

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operational independence and is not subject to direction by any person or authority in respect of the investigation of offences. 21. It is further contended that the Petition is fatally defective for want of precision. The Respondents argue that the Petitioner has failed to meet the threshold established in Anarita Karimi Njeru v Republic (1979) eKLR and affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, in that he has not set out, with reasonable specificity, the manner in which the alleged constitutional violations occurred. They submit that the Petition consists largely of generalized assertions unsupported by cogent evidence. 22. The 2nd and 3rd Respondents further contend that the dispute is, in essence, a private family matter arising from the breakdown of a marriage governed by Islamic law. In their view, the appropriate forum for the ventilation of the Petitioner’s grievances is the Kadhi’s Court, which is constitutionally mandated under Article 170 to determine questions of Muslim personal law relating to marriage, divorce, and inheritance. They argue that the Petitioner is improperly invoking the criminal justice process to pursue what is, in substance, a personal grievance against his former spouse, Asha Josephine Telewa, rather than seeking appropriate remedies within the framework of personal law. 23. In this regard, reliance is placed on the decision in DAM v ASI (Miscellaneous Cause E800 of 2023) KEKC 14 (KLR) for the proposition that, under Islamic HCCHRPET. NO. E283 OF 2024 JDT P a g e 10 | 29

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law, a husband retains the primary right to effect a divorce. The Respondents contend that the Petitioner has not demonstrated that he pursued, or exhausted, such avenues prior to invoking the criminal process. 24. On the whole, the 2nd and 3rd Respondents urge the Court to find that the Petition is devoid of merit and to dismiss it with costs. ANALYSIS AND DETERMINATION 25. Having carefully considered the Petition, the responses, the parties’ submissions, and the entire record, this Court is of the view that the following three broad issues arise for determination: i. Whether the Petition meets the constitutional threshold for precision and the Petitioner has demonstrated a clear violation of his fundamental rights and freedoms. ii. Whether the decision of the 1st Respondent to decline to prosecute Asha Josephine Telewa was a lawful and constitutional exercise of his prosecutorial discretion, or whether it was so irrational, unreasonable, and procedurally unfair as to warrant the intervention of this Court. iii. Whether the actions of the 2nd Respondent, through its officers at Embakasi Police Station, in handling the Petitioner’s complaint, violated the Petitioner’s constitutional rights to dignity, fair administrative action, and access to justice, and what remedies, if any, the Petitioner is entitled to. HCCHRPET. NO. E283 OF 2024 JDT P a g e 11 | 29

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Whether the Petition meets the constitutional threshold for precision and the Petitioner has demonstrated a clear violation of his fundamental rights and freedoms. 26. The 2nd and 3rd Respondents challenge the competency of the Petition on the basis that it fails to meet the constitutional threshold of precision as articulated in Anarita Karimi Njeru v Republic (1979) eKLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Their contention is that the Petition is framed in broad and generalized terms, merely cataloguing constitutional provisions without sufficiently linking them to specific acts or omissions attributable to the Respondents. It is therefore argued that the Petition is vague, speculative, and incapable of sustaining constitutional adjudication. 27. The Petitioner, on the other hand, maintains that the Petition is detailed, factspecific, and anchored in a coherent chronology of events. He submits that he has clearly set out the impugned conduct of the police and the Director of Public Prosecutions, identified the constitutional provisions allegedly violated, and demonstrated the manner in which those violations arose. He further contends that the Respondents were able to file detailed responses and submissions, which in itself demonstrates that no prejudice has been occasioned and that the Petition is sufficiently clear for determination. 28. The requirement of precision in constitutional litigation is now well settled. It is not a matter of procedural technicality but a substantive constitutional safeguard designed to ensure fairness in litigation and to enable effective HCCHRPET. NO. E283 OF 2024 JDT P a g e 12 | 29

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adjudication. Its purpose is to ensure that a respondent knows the case it has to meet, and that the Court is able to isolate the precise constitutional questions for determination. However, the applicable standard is one of reasonable precision, not mathematical exactitude. A petitioner is required to set out the factual basis of the claim, identify the constitutional provisions implicated, and demonstrate a discernible nexus between the facts and the alleged violations. 29. When measured against that standard, this Court is satisfied that the Petition meets the threshold of reasonable precision. The factual narrative is clearly articulated and traces the complaint from the initial report to the police, through the alleged failure to investigate, the escalation to the Office of the Director of Public Prosecutions, and the eventual decision declining to prosecute. These are not abstract allegations but identifiable events anchored in time, institutional actors, and specific decisions. 30. The Petition further identifies, with sufficient clarity, the constitutional provisions alleged to have been violated, including Articles 27, 28, 29, 35, 47, 48, and 50 of the Constitution. Importantly, these provisions are not cited in isolation. The Petitioner links the alleged failure to investigate to the right of access to justice under Article 48, the alleged delay and reasoning of the prosecutorial decision to fair administrative action under Article 47, and the alleged conduct of police officers to dignity and protection from degrading treatment under Articles 28 and 29. This establishes a coherent constitutional narrative capable of judicial interrogation. HCCHRPET. NO. E283 OF 2024 JDT P a g e 13 | 29

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31. The objection that the Petition is vague is further weakened by the fact that the Respondents have been able to respond substantively to the allegations through detailed grounds of opposition and submissions. This demonstrates that the Petition was intelligible and capable of eliciting a meaningful defence. While not determinative in itself, the ability of a respondent to understand and answer a petition is a practical indicator that the threshold of precision has been met and that no prejudice has arisen. 32. The Court is mindful that satisfaction of the pleading threshold does not equate to proof of the alleged violations. It merely establishes that the matter is properly before the Court for substantive determination. The truth or otherwise of the factual allegations, and whether they ultimately amount to constitutional violations, remains a matter for determination under the substantive analysis of each issue. 33. The Court is further guided by the jurisprudence of the Supreme Court which has consistently emphasised a substantive, rather than technical, approach to constitutional litigation. In Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR, the Supreme Court underscored that constitutional interpretation must be guided by substance over form and that courts should not unduly shut out litigants on the basis of procedural technicalities where a constitutional grievance is discernible. Similarly, in In the Matter of the Principle of Gender Representation in the National Assembly and Senate (Advisory Opinion No. 2 of 2012), the HCCHRPET. NO. E283 OF 2024 JDT P a g e 14 | 29

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Supreme Court reiterated that constitutional processes must be construed purposively so as to promote access to justice and the realisation of constitutional rights. 34. In light of the foregoing principles, the Court is satisfied that the Petition discloses a coherent factual foundation, identifies the relevant constitutional provisions, and articulates the manner in which the alleged violations are said to have occurred. The Petition therefore meets the constitutional threshold of reasonable precision and cannot be defeated on the basis of vagueness or generality. The preliminary objection on this ground is accordingly without merit. 35. On the evidentiary aspect, the Court notes that the Petitioner has placed before it a sworn account of events which has not been directly rebutted by affidavit evidence from the specific officers alleged to have engaged in the impugned conduct. While the absence of a replying affidavit is not determinative of liability, uncontroverted sworn evidence must be evaluated on its coherence and plausibility within the broader factual matrix. At this stage, the Court is satisfied that the allegations are neither frivolous nor speculative but disclose an arguable basis for constitutional scrutiny. 36. Accordingly, the Court finds that the Petition meets the constitutional threshold of precision and discloses cognisable questions of constitutional violation warranting full adjudication. The objection accordingly fails. HCCHRPET. NO. E283 OF 2024 JDT P a g e 15 | 29

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Whether the decision of the 1st Respondent to decline to prosecute Asha Josephine Telewa was a lawful and constitutional exercise of his prosecutorial discretion, or whether it was so irrational, unreasonable, and procedurally unfair as to warrant the intervention of this Court. 37. The Court now turns to the core question of the Petition, the decision of the Director of Public Prosecutions dated 11th February 2021 declining to institute criminal proceedings. The starting point is the constitutional architecture governing prosecutorial authority. Article 157(10) of the Constitution expressly insulates the Office of the Director of Public Prosecutions from direction or control by any person or authority. This independence is a cornerstone of the criminal justice system, designed to ensure that prosecutorial decisions are made free from political, partisan, or extraneous influence. 38. The courts have consistently recognised this constitutional autonomy. In David Kipruto Chingi & Another v Director of Public Prosecutions & 2 Others (supra), the Court of Appeal stated as follows: “In principle, it is not the work of the courts to interfere with other State Organs unless it can be shown that they violate the Constitution each State Organ must be allowed to function without interference. It is the duty of this Court to protect not only the functional, administrative and operational independence of the Office of Director of Public Prosecution but also to protect the applicants and ensure that in exercise of his functions, the DPP must have regard to the public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process.” HCCHRPET. NO. E283 OF 2024 JDT P a g e 16 | 29

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39. Similarly, in Lalji & another v Attorney General & 4 others [2018] KECA 856 (KLR), the Court of Appeal reaffirmed that prosecutorial discretion is broad and that courts will not interfere merely because they would have reached a different conclusion or because the decision is alleged to be based on a misapprehension of facts or law. The threshold for judicial intervention is therefore high. 40. However, this discretion is not unfettered. It is constitutionally circumscribed by Article 157(11), which requires the Director of Public Prosecutions, in exercising his mandate, to 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. The Court’s role under Article 165(3)(d)(ii) is therefore not to substitute its own view for that of the DPP, but to interrogate whether the impugned decision falls within the bounds of legality, rationality, and procedural fairness. 41. Put differently, the question is not whether this Court would have preferred prosecution, but whether the decision to decline prosecution was so unreasonable, irrational, or procedurally flawed that no reasonable prosecutor, properly directing himself on the law and the facts, could have reached it. 42. The material before the DPP was, on its face, relatively straightforward. The Petitioner presented documentary evidence of two marriage certificates, HCCHRPET. NO. E283 OF 2024 JDT P a g e 17 | 29

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both confirmed as authentic by the Registrar of Marriages. One marriage was contracted in 2006 under Islamic law, and the second in 2017 under the African Christian marriage regime. It is not disputed that no formal dissolution of the first marriage by a court of competent jurisdiction had been demonstrated. On a prima facie basis, this presented an arguable foundation for consideration under Section 171 of the Penal Code on bigamy, which criminalises contracting a second marriage while a lawful spouse is living and the earlier marriage subsists. 43. At this stage, it must be emphasised that the Court is not making a finding on guilt or sufficiency of evidence for trial. The relevant inquiry is whether there was a plausible evidential basis upon which the DPP was required to exercise his discretion in accordance with Article 157(11). The DPP himself acknowledged that he considered the complaint and the accompanying documentation. The issue therefore is not absence of material, but the rationality of the conclusions drawn from it. 44. Against that evidential background, the DPP declined to prosecute on two principal grounds. The first was that prosecution would not serve the public interest, particularly because the parties had children. With respect, this Court finds that reliance on the existence of children as a determinative factor at the pre-charge stage constituted a misdirection in principle. While the welfare of children is an important constitutional consideration under Article 53, it does not, without more, negate the public interest in the enforcement of criminal law where a cognisable offence is disclosed. Public HCCHRPET. NO. E283 OF 2024 JDT P a g e 18 | 29

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interest in the context of prosecutorial discretion is concerned primarily with the maintenance of the rule of law, deterrence of crime, consistency in enforcement, and the administration of justice. 45. The existence of children may, in appropriate cases, become relevant at the sentencing stage or in the exercise of prosecutorial leniency where legally permissible. However, at the decision-to-charge stage, it is not ordinarily a standalone basis for declining prosecution where a prima facie offence is disclosed. To that extent, the reasoning disclosed a conflation between considerations relevant to sentencing and those relevant to the decision whether to prosecute. 46. That said, this Court is mindful that disagreement with reasoning does not, in itself, render a decision unconstitutional. The question remains whether the reliance on that factor rendered the decision so unreasonable that it falls outside the range of constitutionally permissible outcomes. In the Court’s view, when considered against the nature of the offence alleged and the evidential material presented, the weight accorded to that factor was disproportionate and amounted to a material misdirection in the exercise of discretion. 47. The second reason advanced was that the matter ought to be addressed before the Kadhi’s Court in relation to issues of marriage, divorce, custody, and matrimonial property. While the Kadhi’s Court is constitutionally established under Article 170(5) and has jurisdiction over questions of HCCHRPET. NO. E283 OF 2024 JDT P a g e 19 | 29

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Muslim personal law, its mandate does not extend to the determination of criminal liability. The Petitioner was not seeking dissolution of marriage or resolution of matrimonial disputes but was reporting an alleged criminal offence. 48. To the extent that the DPP treated the dispute as one primarily suited for a civil or religious forum, this Court finds that the decision reflected a mischaracterisation of the complaint before him. However, it is important to clarify that referral of parties to appropriate civil or family law fora is not, in itself, unlawful. The constitutional issue arises where such referral is used as a substitute for the discharge of a clear constitutional mandate to assess whether a criminal offence discloses a prosecutable case. In this instance, the effect of the decision was to decline to engage with the criminality alleged on its merits, thereby amounting to a failure to properly exercise prosecutorial discretion. 49. The Court also takes into account the procedural history of the matter. The Petitioner’s complaint remained unaddressed for a significant period before the eventual decision was communicated. Further, in the context of private prosecution proceedings, the conduct of the DPP, particularly in aligning submissions with the intended accused without formally assuming a prosecutorial position, gives rise to concerns as to the propriety and neutrality expected of the Office. While the Court refrains from making a finding of bad faith, these circumstances form part of the overall assessment HCCHRPET. NO. E283 OF 2024 JDT P a g e 20 | 29

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of whether the decision-making process met the constitutional standard of fairness and objectivity. 50. In Kuria & 3 Others v Attorney General [2002] 2 KLR 69, the Court cautioned that the criminal process should not be used as an instrument of personal vendetta, but equally it must not be undermined by misapplication of prosecutorial discretion or misplaced considerations. The same principle applies here, prosecutorial discretion must be exercised within lawful bounds and for proper purposes. 51. Taking the matter in its entirety, this Court is satisfied that the impugned decision was affected by material misdirection on relevant considerations, failure to properly apply the standard of prosecutorial assessment, and reliance on factors that were not, in themselves, sufficient to justify declining prosecution in the face of an arguable offence. The cumulative effect of these deficiencies renders the decision one that falls outside the range of constitutionally permissible prosecutorial outcomes. 52. Accordingly, the Court finds that the decision of the 1st Respondent dated 11th February 2021 was not a proper exercise of prosecutorial discretion as contemplated under Article 157 of the Constitution, and amounted to a violation of the Petitioner’s rights under Articles 47 and 48 of the Constitution. Whether the actions of the 2nd Respondent, through its officers at Embakasi Police Station, in handling the Petitioner’s complaint, violated the HCCHRPET. NO. E283 OF 2024 JDT P a g e 21 | 29

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Petitioner’s constitutional rights to dignity, fair administrative action, and access to justice, and what remedies, if any, the Petitioner is entitled to. 53. The final issue concerns whether the conduct of officers at Embakasi Police Station in handling the Petitioner’s complaint violated his constitutional rights to dignity, fair administrative action, and access to justice, and the remedies, if any, that flow therefrom. 54. It is not in dispute that in 2017 the Petitioner reported to Embakasi Police Station an allegation of bigamy under Section 171 of the Penal Code, supported by documentary material indicating the existence of two marriage certificates, both confirmed as authentic by the Registrar of Marriages. The National Police Service is, under Article 244 of the Constitution and the National Police Service Act, enjoined to investigate crimes with diligence, professionalism, and fidelity to constitutional values, including respect for human rights. 55. The first question is whether the failure to undertake meaningful investigations constituted a violation of the Petitioner’s rights under Articles 47 and 48. Article 47 requires that administrative action be lawful, reasonable, and procedurally fair. The Court of Appeal in Judicial Service Commission v Mbalu Mutava [2015] eKLR affirmed that Article 47 applies to all administrative action and imposes a constitutional duty of fairness, while Dry Associates Ltd v Capital Markets Authority & Another [2012] eKLR emphasised that administrative action must not be arbitrary, irrational, or procedurally unfair. HCCHRPET. NO. E283 OF 2024 JDT P a g e 22 | 29

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56. On the facts before this Court, what emerges is not merely delay or imperfection in investigation, but a sustained failure to take any demonstrable investigative steps despite the existence of a prima facie cognisable offence. The Petitioner’s evidence, which remains uncontroverted by any affidavit from the investigating officers, is that the complaint remained unattended in any meaningful sense over a prolonged period, with repeated assurances of “ongoing investigations” unsupported by particulars or progress. While Article 245(4) of the Constitution protects the operational independence of the Inspector-General, that independence cannot be construed as authorising inertia or insulating investigative organs from constitutional scrutiny. 57. This Court has already found in Issue 2 that the prosecutorial decision-making process was itself vitiated by misdirection as to evidential threshold and public interest. The investigative and prosecutorial stages are constitutionally interconnected, failure at one stage inevitably compromises the integrity of the other. The result is a breakdown in the criminal justice chain, thereby implicating Article 48 on access to justice. The Supreme Court in Benson Ambuti Adega & 2 others v Kibos Sugar & Allied Industries Ltd & 5 others [2023] KESC 2 (KLR) underscored that the constitutional guarantee of access to justice under Article 48 is not confined to the formal availability of courts, but extends to the effectiveness, fairness, and meaningfulness of the processes through which claims are pursued and determined, including pre- HCCHRPET. NO. E283 OF 2024 JDT P a g e 23 | 29

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trial and administrative mechanisms that may either facilitate or impede access to adjudication. 58. The Court must, however, be mindful that constitutional oversight of investigative functions is exercised within defined limits. In Commissioner of Police & Director of Criminal Investigation Department & another v Kenya Commercial Bank Ltd & 4 others [2013] KECA 182 (KLR), the Court of Appeal made it clear that where it comes to the attention of the Court that there has been a serious abuse of power, the Court is not only entitled but duty-bound to express its disapproval and intervene to stop it in order to secure the ends of justice. The Court stated as follows: “If it comes to the attention of the court that there has been a serious abuse of power, it should, in our view, express its disapproval by stopping it, in order to secure the ends of justice, and restrain abuse of power that may lead to harassment or persecution.” 59. That principle is directly engaged in the present case. The Court is not being invited to direct investigations, but to interrogate whether constitutional obligations were observed. The police independence under Article 245(4) does not extend to shielding conduct that amounts to abuse, inertia, or abdication of constitutional duty. 60. The second limb concerns the alleged violation of dignity under Article 28 and the prohibition of cruel, inhuman, or degrading treatment under Article HCCHRPET. NO. E283 OF 2024 JDT P a g e 24 | 29

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29. The Petitioner’s sworn evidence is that a senior police officer made remarks imputing sexual inadequacy and personal weakness to him in the course of handling his complaint. This evidence remains uncontroverted. 61. The jurisprudence on dignity is settled. In S v Makwanyane 1995 (3) SA 391 (CC), O’Regan J stated that “without dignity, human life is substantially diminished.” The Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] KESC 34 (KLR) reaffirmed dignity as a foundational constitutional value permeating all rights. The question is therefore whether the conduct meets the constitutional threshold. 62. While not every discourteous remark by a public officer amounts to a constitutional violation, remarks that are personal, sexualised, and degrading, made in the context of a citizen seeking assistance from the State, cross the constitutional threshold. The remarks attributed to the officer in this case served no investigative purpose and were calculated to humiliate and deter the Petitioner from pursuing his complaint. The Court is satisfied that this constitutes degrading treatment under Article 29(f) and an affront to dignity under Article 28. 63. The cumulative effect of the police conduct the failure to undertake meaningful investigations, the obstruction of effective complaint handling, and the degrading treatment of the Petitioner amounts to a violation of Articles 28, 47, and 48 of the Constitution. When considered alongside the HCCHRPET. NO. E283 OF 2024 JDT P a g e 25 | 29

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Court’s findings in Issue 2, it is evident that there was a systemic breakdown in the criminal justice process from investigation through to prosecution. 64. Having so found, the Court turns to remedies under Article 23(3) of the Constitution. The Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others emphasised that constitutional remedies serve to vindicate rights and acknowledge breaches, but must be principled, proportionate, and grounded in evidence. 65. In the present case, although the Court has found violations of Articles 28, 47, and 48, it is not persuaded that an award of constitutional damages is warranted. Constitutional damages are not automatic upon proof of breach, they require a sufficient evidential foundation to enable the Court to assess the nature, extent, and impact of the harm suffered. The material before the Court establishes violation but does not provide a principled or objective basis for quantification of injury. To award damages in such circumstances would risk speculation rather than judicial determination. 66. Accordingly, the Court declines to award constitutional damages. The appropriate remedy is a declaratory order, which sufficiently vindicates the Petitioner’s rights and marks the Court’s disapproval of the unconstitutional conduct of the Respondents. CONCLUSION HCCHRPET. NO. E283 OF 2024 JDT P a g e 26 | 29

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67. Having carefully evaluated the pleadings, the evidentiary material placed before Court, the applicable constitutional provisions, and the relevant jurisprudence, this Court is satisfied that the issues raised in this Petition are not merely administrative disagreements with State agencies, but engage core constitutional safeguards governing dignity, fairness, accountability, and the proper exercise of public power. The Court has, in the preceding analysis, interrogated the conduct of both the prosecutorial and investigative authorities against the constitutional thresholds of rationality, legality, and procedural fairness. It is on the basis of those findings that the Court now renders its final determination. 68. In conclusion, this Court finds that the Petition dated 6 th June 2024 is meritorious. The 1st Respondent ostensibly acted unlawfully and irrationally in declining to prosecute Asha Josephine Telewa. The 2 nd Respondent’s officers acted in a manner that was abusive, degrading, and a complete dereliction of their constitutional duty. The cumulative effect of these state actions was to deny the Petitioner his fundamental rights to dignity, fair administrative action, and access to justice. 69. For the reasons set out in this judgment, the Court makes the following final orders: a. A declaration be and is hereby issued that the 1 st Respondent, the Director of Public Prosecutions, acted in contravention of Articles 47 and 48 of the Constitution of Kenya, 2010, by issuing an unlawful, HCCHRPET. NO. E283 OF 2024 JDT P a g e 27 | 29

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unreasonable, and procedurally unfair decision declining to prosecute Asha Josephine Telewa. b. A declaration be and is hereby issued that the 2 nd Respondent, the Inspector General of the National Police Service, acting through officers at Embakasi Police Station, acted in contravention of Articles 28, 29, 35, and 48 of the Constitution of Kenya, 2010, by failing to diligently investigate the Petitioner’s complaint, by denying him access to his police file, and by subjecting him to degrading and humiliating treatment. c. An order of Certiorari be and is hereby issued, quashing the 1 st Respondent’s decision as contained in his letter dated 11th February 2021. d. For the avoidance of doubt, the order quashing the DPP’s decision of 11th February 2021 does not compel the DPP to institute criminal proceedings. The DPP is at liberty to reconsider the Petitioner’s complaint afresh, in accordance with the law and the observations made in this judgment. e. Each party shall bear their own costs. Orders accordingly. File Closed Accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026. ________________________ BAHATI MWAMUYE MBS JUDGE HCCHRPET. NO. E283 OF 2024 JDT P a g e 28 | 29

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In the presence of: Counsel for the Petitioner – Mr. Dulu Counsel for the 1st Respondent – Mr. Mulati Counsel for the 2nd & 3rd Respondents – No Appearance Court Assistant – Mr. Sanja HCCHRPET. NO. E283 OF 2024 JDT P a g e 29 | 29

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