The High Court in Machakos has awarded a matatu driver Sh100,000 as compensation for wrongful arrest and prosecution.
Mr Erastus Maina Karanja had been arrested on accusation of obstructing county government officers.
But Justice David Kemei, while awarding the compensation to Mr Karanja, said that his rights to liberty had been violated.
Mr Karanja was arrested on February 3, 2017 by two employees of the Machakos County government and charged at a magistrate’s court with three counts including picking passengers at a non-designated area.
He was also charged with causing obstruction on the road while picking passengers and resisting lawful impoundment of his motor vehicle. He was said to have acted in contravention of the Machakos County Commuter Vehicles Act, 2015. He was driving on Ngei Road near Susu centre.
Lack of evidence
After the trial, he was acquitted of two counts due to lack of evidence but was found guilty of the offence of obstruction of county officers.
The magistrate’s court ordered him to pay a fine of Sh5,000 or in default serve two months imprisonment.
But Mr Karanja appealed and the sentence as well as the conviction were set aside. He subsequently filed a petition seeking compensation as a result of the losses and suffering in the hands of the county government officers.
While allowing the petition, Justice Kemei declared that the arrest, prosecution and eventual conviction and sentencing of Mr Karanja were unlawful acts.
The judge ruled that the arrest was in contravention of Article 29(1) of the Constitution which protect Kenyans from being deprived of their freedom without a just cause. Similarly, the detention deprived Mr Karanja of his freedom of movement guaranteed under Article 39(1).
Rule of law
Judge Kemei said in a constitutional democracy like Kenya's, it is imperative that citizens have confidence and trust in the institutions established to safeguard the rule of law.
"The citizens expect the police officers in going about their duties to be fair, transparent and accountable in executing duties on behalf of the State," said the judge.
The court held that as a general rule, an arrest of a suspect should not be made unless and until his or her case has been investigated with sufficient evidence, requiring an answer on the complaint.
The starting point for the investigating officer is not to depart from the enforcement of a right to a fair hearing and due process, stated Justice Kemei.
In opposing the petition, the county government, through Robert Maitha, the chief officer in the Department of County Administration and Inspectorate Services, told the court that the arrest was not unlawful since the county officer has the power to arrest, tow and detain vehicles where provisions have been contravened as stipulated under the Machakos Commuter Vehicles Act, 2015.
Mr Maitha further said that the right to freedom and security of the person is not absolute as it has limitations and does not curtail the obligation of State agencies to enforce regulations.
He explained that the county government officers, while on patrol, spotted the motor vehicle stopping to pick up passengers at Susu centre, a non-designated area.
The officers tried to impound the said motor vehicle but it took off and since they had parked the patrol vehicle on the opposite side of the road, pursuing the matatu could have been unsafe for other road users.