“The Court has carefully perused the affidavits filed in this matter and has perused the relevant constitutional and statutory provisions. Section 5 of IPOA Act outlines the objectives… (of the Authority) and Article 244 is on the objects of the police. Section 7 of the (IPOA) Act gives it power to investigate members of the National Police Service on its own motion or on receipt of a complaint from members of the public.”Lady Justice L. Njuguna, High Court in Embu
Charges against the officers were registered in Court on January 31, 2020, the officers were arraigned on March 2, 2020, the officers’ notice to the High Court is dated March 10, 2020
A spirited battle by two police officers to stop prosecution for criminal charges levelled against them has ground to a halt after their application was dismissed by the High Court.
Sergeant John Kithinji and Police Constable Jillo Kitasi will now proceed with arraignment over serious injuries inflicted on a woman, a charge they had hoped would be stopped by the higher court when they filed a Constitutional petition.
In the petition, they were challenging the Independent Policing Oversight (IPOA) which investigated them for the offence of causing grievous harm and the Office of the Director of Public Prosecutions (ODPP) which the law mandates to prosecute all criminal charges.
The officers argued that by preferring charges against them, the Independent Policing Oversight Authority had “perpetuated an illegality,” “usurped ODPP powers,” and their Constitutional rights infringed.
Application lacked merit
In a ruling delivered at the High Court in Embu, Lady Justice L. Njuguna dismissed the officers’ application for lacking merit.
The Ruling states: “Though the IPOA conducted independent investigations as mandated by IPOA Act, the decision to charge was made by the ODPP and which is within its constitutional mandate.”
Before making the ruling, the High Court appreciated the matter at the lower court which was the basis the officers had laid to claim that their Constitutional rights had been infringed.
Assault and arrest
The woman, Ms. Nyaga, together with her sister, was harvesting arrowroots at her farm at Igumo village, Embu County on January 30, 2018, when police officers arrived and asked that she accompanies them, the court was informed.
In her response to the petition, the court noted: “She refused because they did not identify themselves and so the petitioners (officers) proceeded to viciously attack her and in the end, she sustained serious injuries. It was disposed that upon going to the hospital, it was confirmed she had been injured as a result of the assault.”
The court further noted that she reported the assault at Itabua police station in Embu but officers there were reluctant to conduct investigations and she sought help from IPOA, the High Court further noted.
During the petition, it was also revealed to the High Court, that the police had further preferred charges against the woman; “giving false information,” in regard to the assault.
That the woman had been charged for an offence, is one of the arguments the officers had placed their hope upon in pleading their innocence.
Their argument to the High Court was noted: “The second respondent (Ms.Nyaga) is facing charges of giving false information in regard to her assault whereas the 1st respondent (IPOA) is acting on the basis of the same information to charge the officers.”
They went on: “The acts of the respondents (IPOA) are not only unconstitutional but illegal and if left to stand, the same will encourage any person to charge police officers who may have arrested a suspect.”
IPOA objectives and powers
In throwing out the officers‘ application, the High Court poked holes in these arguments and noted:
“The 1st respondent (IPOA) recorded statements from witnesses and from both the petitioners (officers) and accorded them the opportunity to give their version of the events under inquiry which according to the 1st respondent (IPOA) revealed that the petitioners (officers) assaulted the 2nd respondent (Ms Rosemary Njeri Nyaga) during her arrest.”
The Court also stated: “The Court has carefully perused the affidavits filed in this matter and has perused the relevant constitutional and statutory provisions. Section 5 of IPOA Act outlines the objectives… (of the Authority) and Article 244 is on the objects of the police. Section 7 of the (IPOA) Act gives it power to investigate members of the National Police Service on its own motion or on receipt of a complaint from members of the public.”
It added: “The Court has carefully considered the petitioners’ (officers) application and the respondents’ replying affidavits as well as the party’s rival submissions and from the aforesaid, the issue of determination is whether the application is merited.”
Lady Justice Njuguna concluded: “In the end, I find that the application has no merit and the same is hereby dismissed. It is so ordered.”
The ruling was delivered on Wednesday, May 11, 2022.