Senior officers to pay man Sh500,000 for malicious arrest, abuse of power

Inspector General of Police Douglas Kanja among officers ordered to pay Wilson Sadaka sh500,000 for malicious arrest [Joackim Bwana]

The High Court in Mombasa has ordered the Inspector General (IG) of police, Director of Criminal Investigations (DCI), and Attorney General (AG) to pay Sh. 500,000 to a man arrested and detained maliciously over a resolved land dispute in Kilifi County without the directive of the Director of Public Prosecution (DPP).

Justice Jairus Ngaah also directed that the Officer Commanding Station (OCS) Mtwapa, DCI officer Mtwapa, Leonard Kurgat, and Police Constable Mailu pay the said money to Wilson Sadaka for violating his rights under articles 28, 29, 40, 47, and 49(1)(a) of the Constitution.

According to Sadaka’s lawyer, Jane Onyango, the said officers arrested and detained his client for two days following a complaint by Dennis Thuva accusing Sadaka of falsely obtaining a registration of 12 acres of land from his father, Billy Kaluma.

The said officers arrested Sadaka despite Justice Julius Nangea, formerly a Chief Magistrate in Kilifi ruled that the disputed land indeed belonged to Sadaka, who rightfully purchased it in 1999 for sh300,000 from Said Juma, Jumaa Suleiman, Kibwana Suleiman, Mishi Jumaa, Sheikh Twahir, and Mohammed Mohamed.

“From their own affidavit, the respondents (DCI, IG, OCS Mtwapa, Kurgat and Mailu) were well aware that Sadaka could not be charged before they conducted investigations into the complainant’s complaint and, more importantly, before they obtained the green light from the DPP, yet they held Sadaka in custody ostensibly to charge him,” said Justice Ngaah.

The judge said Section 66 (1) of the National Police Act does not insulate officers who act in bad faith from personal liability.

Justice Ngaah said that the Kurgat, the OCS, DCI, IG, and PC Mailu were not only aware of what they were doing but also foresaw the possibility that they were acting wrongfully, and nonetheless continued to act with sheer recklessness, not wary of the consequences of their conduct.

“I am persuaded that, having reached the conclusion that, except for the DPP and the AG, the rest of the respondents were malicious in their conduct, there is no reason why they should not bear the consequences for their actions,” said Justice Ngaah.

The judge also prohibited police from harassing Sadaka and quashed the decision of DCI Mtwapa Police Station directing him to attend court at Shanzu Chief Magistrates court or any other court to take a plea on a charge of obtaining land registration by pretense.

Sadaka was also awarded costs and interest calculated at court rates from the date of this judgment.

In his decision, Justice Ngaah said that the DCI Mtwapa and PC Muli did not act in good faith in their conduct towards Sadaka.

He, however, absolved the DPP and AG from any wrongdoing.

“In the final analysis, the petitioner’s (Sadaka) petition is hereby allowed and, except for the DPP, judgment is hereby entered against all the respondents, jointly and severally,” said Justice Ngaah.

The judge said that, without any response from the lands registrar on the ownership of the suit land, there was no basis upon which Sadaka was arrested and detained on suspicion of having obtained registration by pretense.

The judge said that by arresting and holding Sadaka in a cell without probable cause, the officers violated his right to dignity, infringed on his right to freedom and security, and the right not to be treated in a cruel, inhuman, or degrading manner under Article 29 of the Constitution.

The judge said that by their conduct of arresting, detaining Sadaka, and requiring him to attend court to take a plea on a rather unfounded charge, the officers violated his right to a fair hearing.

“The DCI, IG, OCS Mtwapa, Kurgat, and Mailu conduct is tainted with malice and was for a collateral purpose. It was a repercussion of the petitioner’s successful quest for the ownership of the suit properties in Kilifi Magistrates Court, Environment and Land Court,” said Justice Ngaah.

He said a criminal process cannot be employed to overturn a judgment that has been reached through due process and at any rate, such a judgment is binding not only to the parties to the suit but also, the police.