LEGAL OPINIONBEN JOHNP. O. BOX. 64033-0620NAIROBI Dear Sir,RE: FALSE CORRUPTION ALLEGATIONSWe thank you for your instructions herein and wish to opine as follows;The brief facts is that on 1st day of March 2019 detectives from the Directorate of Criminal Investigations raided your house at 5:30 a.m. while asleep. They gained entry without a search warrant and claimed they were on a mission to retrieve evidence from his house of stolen billions of shillings. The whole raid was being televised live in six media houses.
You were arrested afterwards and branded a public thief by the detectives and arraigned in court three days later. You wer charged with theft of Kshs. Five billion. The media was awash with reports about you being a corrupt cabinet secretary. Your family was branded corrupt, money launderer and public thieves. The Director of Public Prosecution dropped all charges against you on 12th March 2019 wherein in his statement he apologized to you and stated that you were going to be a prosecution witness against other government officials.
.The issues for determination in this scenario are as follows; Whether action for violation of your constitutional rights is sustainable Whether an action in tort is sustainable against the state. Recovery options available to the Defendant.RESOLUTION OF ISSUESConstitutional RightsFrom the facts stated above the state agents (DCI) raided the house at 5:30 a.m. with no search warrant. Section 118 of the Criminal Procedure Code enjoins the state through its investigative agencies to always first obtain a search warrant if they reasonably suspect there is anything necessary for the conduct of an investigation into an offence in any place or building.
The application for the warrant must be lodged before a magistrate and it must be proved on oath that the issuance of the warrant is necessary. The state agents’ actions of forcing their way into the house under the guise of conducting an investigation were therefore unprocedural and illegal.The actions were in violation of your constitutional rights for instance your right to human dignity and right to privacy guaranteed under Articles 28 and 31 of the Constitution respectively. Article 31 provides the Right to Privacy of the person, home or property searched. It recognizes the right of every person to privacy, which includes the right not to have their person searched; their possessions seized; information relating to their family or private affairs unnecessarily required or revealed; or the privacy of their communications infringed. The recognition and protection of the right to privacy as a fundamental human right in the Constitution provides an indication of its importance. Article 19 of the Constitution stipulates that the Bill of Rights is the cornerstone of democracy in Kenya. It enshrines the rights of all people in the country and affirms the democratic values of human dignity, equality and freedom. The right to privacy is a fundamental human right also enshrined in numerous international human rights instruments. For instance Article 12 of the Universal Declaration of Human Rights provides as follows;No one shall be subjected to arbitrary interference with his privacy family home, or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.The right to human dignity on the other hand is recognised as the basis of fundamental rights and the Universal Declaration of Human Rights in its Preamble states that;recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.The Right to Human Dignity is inherent and together with the right to life, they form the basis for all other rights to be enjoyed by a human. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Personal choices governing a way of life are intrinsic to privacy. Privacy attaches to the person since it is an essential facet of the dignity of the human being. Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual. The right of privacy is a fundamental right. It protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.The Intrusion into the family house at 5:30 a.m. with the media and without a search warrant violated your rights to privacy and human dignity to which the state is under an obligation to take all necessary steps to protect. Since the violation was at the behest of state agents a valid action for violation of your constitutional rights can be founded against the state. TortFrom the facts adduced an arrest was effected and you were charged before a court of law for abuse of office and theft of five billion shillings. The charges were later dropped by the Director of Public Prosecution. The whole incident was reported in various media outlets where you were branded all sort of names ranging from being a money launderer to being a corrupt top cabinet secretary.It is worthy to note that before an accused person is taken to court and arraigned in court for criminal prosecution, the prosecuting authority namely the police usually carry out investigations, record statements from potential witnesses and analyzed facts to determine if the facts disclose an offence before forwarding the file to the Director of Public Prosecution who makes the decision of having the person arraigned before a court of law having been satisfied that the evidence presented to him by the police is cogent.In the case before us you were arrested without any formal investigations having been carried out and presented before a court of law. The conduct by the police and the Director of Public Prosecution was therefore unreasonable and infringed on your rights. The actions of the police to gain entry into the house without a search warrant were also in total violation of section 118 of the Criminal Procedure Code and Section 19 of the Police Act which compels the police to obtain a search warrant before gaining entry into any building for purposes of conducting an investigation. The only instance under the laws where a police officer is allowed to gain entry into a building without a search warrant is stipulated under section 20 of the Police Act and in this case the police must honestly believe that the delay in obtaining a search warrant will prejudice the investigations. But even after gaining entry in this instance he/she must produce a certificate of appointment to the occupier of the house and take anything seized from the house before a magistrate. The right to be presented with a search warrant before gaining entry into the victims house is therefore so fundamental and where entry is gained without a search warrant the police must still account for their actions before a magistrate. The police actions in this instance were therefore in violation of a statute (Criminal Procedure Code and the Police Act) and unreasonable. A Tort under the Black’s law dictionary is defined as conduct below that which society considers reasonable when such unreasonable conduct is the proximate cause of injury to another person or his property, the actor may be liable in tort. It is also defined as a civil wrong that causes the victim to suffer loss or harm resulting in legal liability for the person who commits the act or a wrongful act or an infringement of a right. The right infringed in cases of tort is a right guaranteed under a statute (Act of Parliament) not under the constitution.The state agent’s actions were clearly unreasonable, wrongful and infringed on your rights and a civil wrong that calls for an action in tort against the government. Having been arrested and detained at Muthaiga Police station an action in tort for False Imprisonment is valid. The Black’s law dictionary defines detention as act or fact of holding a person in custody, confinement or compulsory delay. A restraint of a person in a bounded area without justification or consent. Such an action for false imprisonment fits well in actions and conduct of the police. Having found that there was no justifiable cause for your incarceration in the police cells a fact acknowledged by the DPP when charges were dropped against you, you are entitled to a claim of false imprisonment. The gist of an action for false imprisonment is unlawful detention, without more. There following have to be proved to be successful in this action; The unlawful restraint Against the will of the one restrained Without legal justification.In Proving the first element of false imprisonment involves looking at the facts whether there was any force or threat of some kind used in restraining the victim. It is important to note that actual force is not necessary. Proving the second element of false imprisonment involves applying reasonable person’ standard. Thus, the court will determine whether a reasonable person in the same factual situation would believe that they have been detained against their will. The final element of false imprisonment involves determining whether there is a legal basis for the detention. Many legal bases for detention do exist such as a lawful arrest by law enforcement. Determining whether probable or a legal basis for the detention exists is the key in false arrest cases. I am satisfied that in your scenario from the facts as they are, you were arrested, taken to the police station, confined, charges preferred against you in a court of law and later dropped and an apology rendered to you since the charges were baseless. An action for false imprisonment will be successful. You were also charged before a court of law and the charges were terminated. You can also sue for malicious prosecution. It is an action in tort committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit. To succeed in an action for malicious prosecution the following must be evident;i. The criminal proceedings must have been instituted by the person sued, that is, he was instrumental in setting the law in motion against you and it suffices if he arrested the victim and took him before a judicial authority;ii. The defendant must have acted without reasonable or probable cause i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;iii. The defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and iv. The criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge.Setting the law in motion’ in this context has not the meaning frequently attributed to it of having a police officer take action, such as effecting arrest. It means being actively instrumental in causing a magistrate or judge to take action that involves having the victim in a criminal charge before a court of law. For the purposes of proof that the criminal proceedings have been determined in your favour it is enough that the criminal proceedings have been terminated without being brought to a formal end. The fact that no fresh prosecution has been brought entitles you to bring a suit for malicious prosecution against the state. It is enough therefore that the DPP withdrew the charges against you even though the criminal trial never came to a formal end. Reasonable and probable cause on the other hand is an honest belief in your guilt as an Accused in this instance by the state agents based upon a full conviction and founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably have led an ordinary prudent and cautious man placed in the position of the police to the conclusion that the you were probably guilty of the crime imputed. To constitute reasonable and probable cause the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of the facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that you were probably guilty of abuse of office and theft of Kshs. Five billion. Your prosecution in our view was malicious as the prosecution also ought to have realized at the time he instituted the prosecution from the material before him that the charges were unfounded and had no basis.While suing for false imprisonment and malicious prosecution you can also sue for damage to your reputation within the same suit. Since the media houses were involved from the time of your arrest and published various alarming and unfounded stories against you arising from the actions of the DCI you may also claim that you were defamed. An action on defamation may be lodged alongside the other two for malicious prosecution and false imprisonment. Black’s Law Dictionary defines defamation as “the act of harming the reputation of another by making a false statement to a third person. A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. The ingredients of defamation are:-i. The statement must be defamatory.ii. The statement must refer to the plaintiff.iii. The statement must be published by the defendant.iv. The statement must be false.A statement is defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or has a tendency to injure him in his office, profession or calling. Being branded a money launderer and corrupt cabinet secretary are examples of the defamatory statements. The defamatory words complained of must have been uttered with no justifiable cause and the perpetrator knew the words complained of were false but did not care to verify. The defamatory words must be shown to have been published by the defendant. The actions of the cops to brand you a public thief in the presence of the media and inviting the media to your house as a way of purportedly exposing a public thief were defamatory to your character. REMEDIES The remedy available to you is to sue the government for damages for an action in tort for false imprisonment, malicious prosecution and damage to reputation. The actions in tort can be lumped in one suit. The proper defendant for an action in tort will be the government which is liable for the actions of its agents the police and the media house for publishing defamatory words. Even though the media houses might have a valid defence and claim they were reporting the proceedings as they were. The state however is likely to be found culpable for damaging your reputation and considering the fact that you were a public figure the courts will take that into account in awarding damages.You can also institute another suit by way of a constitutional petition seeking a declaration that your constitutional rights to privacy and human dignity have been violated and seek for damages as a result. Though the two actions in tort and the constitutional petition emanate from the same set of facts or transaction the cause of action are however different and can be sustained separately. A constitutional petition is a litigation initiated to either challenge breach of constitutional provisions or violation or infringement of rights and fundamental freedoms granted or recognized by the Constitution. A tort on the other hand as earlier explained is a civil wrong, illegal act or violation of a right under an Act of Parliament.ConclusionWe opine that you have a good case because legally you are entitled to recover compensation from the State for the illegal actions of its agents and violation of your constitutionally guaranteed rights. Should you have any question or require assistance regarding this case don’t hesitate to contact our office for further advice. Thank you.Yours faithfully,