Ochieng v Attorney General (Petition E051 of 2025) [2026] KESC 32 (KLR) (15 May 2026) (Judgment)

Ochieng v Attorney General (Petition E051 of 2025) [2026] KESC 32 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KESC 32 (KLR) REPUBLIC OF KENYA IN THE SUPREME COURT OF KENYA PETITION E051 OF 2025 PM MWILU, DCJ & VP, SC WANJALA, N NDUNGU, I LENAOLA & W OUKO, SCJJ MAY 15, 2026 BETWEEN JUSTUS OCHIENG .................................................................................. APPELLANT AND ATTORNEY GENERAL ...................................................................... RESPONDENT (Being an Appeal from the Judgment and Order of the Court of Appeal at Kisumu (Asike-Makhandia, Omondi & Nyamweya, JJ.A.) delivered in Civil Appeal No. E108 of 2021 on 7th November 2025)

Judgment

Representation: Mr. Owino Kojo for the Appellant (Owino Kojo & Co. Advocates) No appearance for the Respondent A. Introduction

1. Before us is the petition of appeal dated 15th December, 2025, invoking the Court’s appellate jurisdiction under Article 163 (4) (a) of the Constitution. The substratum of the appeal is the question whether the respondent violated the appellant's rights under Articles 25, 29, 33, 48, 49, and 51 of the Constitution during his arrest and subsequent detention at Kisumu Central Police Station. The appellant, in that regard, challenges the Court of Appeal’s decision delivered on 7th November, 2025, which upheld the High Court’s decision dated 30th January, 2020, that partially found a violation of the appellant’s constitutional rights and awarded general damages of Kshs. 100,000/- in respect of that breach. B. Factual Background

2. The appellant, on 9th October 2014, while working for the Star Newspaper, received a complaint from a member of the public who alleged that he had been robbed by an individual identied by a single name. The appellant conducted journalistic investigations into the matter and established that the alleged robber was a Criminal Investigations Ocer (CID) ocer attached to Kisumu Central Police Station. On 1st October 2014, the appellant published a story titled “Mystery over return of cop’s stolen money,” and a follow-up on 2nd October 2014 in the Star Newspaper editorial titled “Arrest robber with CID day job”.

3. The appellant, soon after the above publications, started receiving threats to his life from known persons, forcing him to go into hiding and stop his job as a journalist. He reported the threats at Kisumu Central Police Station vide OB No. 53/08/10/2014. On 29th October 2014, he visited the Police Station to inquire about the progress of his complaint, but was instead arrested, detained, tortured, and treated in a cruel, inhuman, and degrading manner. He inquired about the reason for his arrest but was not given any explanation. On 30th October, 2014, he was released at 1:00 am after signing a personal bond under the condition that he appear before the OCS Kisumu Central at 8:00 am the same day. He complied with the bond terms, only to be rearrested for ve hours and subsequently released without being charged.

4. The appellant thereafter made a formal report recorded in OB No. 34/30/10/2014 at Nyando Police Station against the police ocers from Kisumu Central Police Station who had allegedly tortured him, but no charges were preferred against the said ocers. C. Litigation History i. Proceedings at the High Court

5. Based on the foregoing facts, the appellant led a constitutional petition at Kisumu High Court, being Constitutional Petition No. 9 of 2015, seeking the following reliefs reproduced verbatim: a. A declaration order be issued that the actions of the Police Ocers were in breach of the petitioner’s constitutional rights, and the petitioner was unlawfully arrested, detained, and tortured by police ocers from Kisumu Central Police Station; b. This Honourable Court be pleased to order that the Petitioner be paid general damages for breach of his constitutional rights; c. Special damages of Kshs. 1,000/-; d. The costs of the petition be granted.

6. In summary, the appellant maintained that he was lawfully exercising his constitutional right to freedom of expression when, on 1st October 2014, he authored and published a story titled “Mystery over return of cop’s stolen money.” He contended that his arrest and subsequent detention at Kisumu Central Police Station constituted a grave violation of his fundamental rights and freedoms and therefore sought a declaration that the respondents' actions infringed his constitutional rights under Articles 25, 29, 33, 48, 49, and 51 of the Constitution.

7. On the issue of torture, degrading and inhuman treatment, the appellant averred that during his detention, he was subjected to physical assault, as a result of which he sustained bodily injuries. These injuries were documented in a medical document (P3 form), which was produced in evidence as PEXH4.

8. Consequently, and as a result of the aforementioned circumstances, the appellant sought an award of general damages in the sum of Kshs. 15,000,000/- for the alleged violation of his constitutional rights, together with special damages and the costs of the petition.

9. In reply, the respondent’s witness CI Calleb Natha, the Deputy DCIO Kisumu, deponed that at the time of his arrest, the appellant was duly informed of the reasons thereof, namely, that he had been accused of linking one Mr. Oswago to fraudulent conduct. He further stated that, while being held in the police cells, the appellant became unruly, screaming and hurling insults at police ocers. He acknowledged that the appellant was released the following day, at which time he alleged that he had been assaulted by a known police ocer. According to CI Natha, the complaint was investigated and found to be unsubstantiated.

10. CI Natha maintained that the appellant’s arrest on 29th October 2014 was lawful and that he had been informed that it was predicated on allegations of criminal libel arising from his purported linkage of Mr. Oswago to fraud. He further asserted that the appellant’s right to freedom of expression, being a right qualied by the obligation to respect the rights and reputations of others, was not infringed.

11. All in all, the respondent categorically denied that the appellant's rights and fundamental freedoms had been violated as alleged, and, moreover, that the appellant was not entitled to the damages sought for the alleged violation.

12. The High Court (Cherere J), in a judgment delivered on 30th January 2020, identied the sole issue for determination as whether the respondent had violated the appellant’s fundamental rights and freedoms under the Constitution. With regard to the appellant’s arrest, the court observed that the bundle of documents produced by the respondent, together with an extract of OB No. 39 75/29/10/14, demonstrated that the appellant had been arrested for libel following a complaint lodged by one Mr. Oswago. The court consequently found that the arrest was lawful and that the appellant had been duly informed of the reasons thereof. On that basis, it rejected the appellant’s contention that his rights to freedom and security of the person under Articles 29 and 49 of the Constitution had been infringed.

13. The court also determined that the appellant failed to adduce precise evidence demonstrating how his right to freedom of expression under Article 33 had been violated, and his claim under that provision accordingly failed. On the alleged infringement of his right of access to justice under Article 48, the trial court noted that the evidence showed that his advocate had been informed of the arrest and had sent a representative who was granted access to the appellant at Kisumu Central Police Station. In the absence of specic evidence to the contrary, the court declined to nd that his right of access to justice had been violated.

14. With respect to the allegations of torture under Article 25, the court considered the medical examination form (PEXH. 4), which documented physical injuries consistent with the appellant’s account of having been assaulted while in police custody. This evidence was corroborated by eyewitness testimony. On that basis, the court was satised that force had been used to inict pain on the appellant, amounting to torture, and held that he was entitled to appropriate relief.

15. In the end, the court issued a declaration that the respondent had violated the appellant’s constitutional rights under Article 25 of the Constitution by subjecting him to the use of force that inicted pain on his body. The court consequently awarded the appellant Kshs. 100,000/- in general damages for the generalised aches sustained to his cheeks, chest, and abdomen. Although special damages had been pleaded, they were not proved and were therefore declined. Consequently, the petition was partially allowed with costs. ii. Proceedings in the Court of Appeal

16. Aggrieved by that outcome, the appellant preferred an appeal vide Civil Appeal No. E108 of 2021 on 11 grounds, reframed and summarized as follows for precision, faulting the learned Judge for: a. Failing to nd that he proved special damages; b. Failing to nd the arrest unlawful; c. Failing to appreciate the serious extent of the violation of his various fundamental rights and freedoms under the Constitution; and d. Awarding the appellant a paltry Kshs. 100,000/-.

17. At the hearing, learned counsel, Mr. Kojo, appeared for the appellant and relied entirely on his written

Submissions

There was no appearance for the respondent.

18. The Court of Appeal (Asike-Makhandia, Omondi & Nyamweya, JJA), in a judgment delivered on 7th November 2025, the court identied two issues for determination. On the question whether the award of general damages was so inordinately low as to warrant interference by the court, it observed that, upon re-evaluating the medical report and the nature of the injuries sustained, the appellate court agreed with the learned trial Judge that the injuries were not severe and did not occasion any temporary or permanent disability. In the circumstances, the court held that the award of Kshs. 100,000/- in general damages was not inordinately low and therefore did not justify interference.

19. On the question whether the trial court erred in declining to award special damages, the court observed that the record plainly showed that the appellant failed to particularise in his petition the special damages allegedly incurred. Although the appellant contended that such damages had been both pleaded and proved, the record indicated that he merely prayed for Kshs. 1,000/- without setting out the specic particulars constituting that claim. In the court’s view, the appellant did not state his claim for special damages with the requisite precision, and as such, the same could not be awarded. In the result, the appeal was found to be wholly without merit and was dismissed in its entirety, with no order as to costs. iii. Proceedings in the Supreme Court

20. Undeterred, the appellant has now led the instant appeal challenging the decision of the Court of Appeal on nine grounds, reframed and summarized as follows for precision, faulting the learned Judges of Appeal for: a. Failing to appreciate the serious extent of the violation of his various fundamental rights and freedoms under Articles 25 (a), 28, 29, 33 (1) (a), 35, 47, 48, 49, and 51 of the Constitution; and b. Upholding the trial court’s assessment of damages in the modest sum of Kshs. 100,000/- in respect of the violations of the appellant’s constitutional rights and freedoms.

21. Accordingly, the appellant seeks the following reliefs reproduced verbatim: a. The petitioner’s arrest and detention was arbitrary, unlawful, and unconstitutional, and his rights as an arrested person held in custody under Articles 49 and 51 of the Court were violated; b. The arrest and detention of the petitioner on 29.10.2014 and on 30.10.2014 without being subjected to the jurisdiction of the court amounted to unlawful detention; c. The petitioner’s right to freedom and security of the person under Article 29 of the Constitution was breached; d. The petitioner’s right to access to justice under Article 48 of the Constitution was violated; e. The petitioner’s freedom of expression under Article 33(1)(a) of the Constitutional was violated; f. The petitioner’s right to Fair Administrative action under Article 47 of the Constitution was breached; g. The petitioner’s right of access to information under Article 35 of the Constitution was breached; h. The petitioner’s right to human dignity under Article 28 of the Constitution was breached; i. Re-assessment of damages in respect of breach of the petitioner’s constitutional freedom from torture and cruel, inhumane and degrading treatment under Article 25(a) of the Constitution; and j The petitioner be and is hereby awarded damages of Kshs. 15,000,000/- for breach of his constitutional rights and freedoms as above declared.

22. There was no response to the appeal from the respondent, neither was there representation at the hearing before us. D. Parties’ Submissions i. The Appellant’s Submissions

23. At the hearing, learned counsel, Mr. Kojo, appeared for the appellant and relied entirely on his written

24. Having read the appellant's written submissions dated 1st February 2026, the appellant reiterates the claim that his arrest and detention was unlawful and a violation of his rights under Articles 29, 49, and 51 of the Constitution. The appellant maintains that he was not informed of the reasons for his arrest and that he was detained twice without being arraigned in court. He contends that this constituted unlawful detention and a violation of his liberty and rights as an arrested and detained person.

25. On the denial of access to justice under Article 48, he submits that the State failed to investigate his complaints of assault and threats and did not forward investigation les to the prosecutorial authorities. He contends that access to justice entails eective investigation and accountability, not merely access to legal representation.

26. Regarding the violation of his freedom of expression under Article 33 of the Constitution, the appellant maintains that his arrest was retaliatory and intended to intimidate him for publishing a journalistic exposé. He argues that reliance on criminal libel was a pretext and constituted unconstitutional interference with press freedom. On breach of Fair Administrative Action under Article 47, he contends that the police failed to provide reasons for his arrest or to process his complaints expeditiously and lawfully, amounting to procedurally unfair administrative action.

27. Regarding the denial of access to information under Article 35, the appellant submits that he was denied access to ocial information concerning his complaints and arrest records, thereby impairing his ability to protect and enforce his rights. On torture and violation of human dignity under Articles 25(a), 28, and 29, he asserts that he was assaulted while in custody, the claim supported by medical and eyewitness evidence, in breach of the absolute prohibition against torture and his right to dignity. He further questions the adequacy and independence of the police investigation into the assault.

28. Lastly, on the assessment of damages, the appellant submits that the award of Kshs. 100,000/- was inordinately low given the multiplicity and gravity of the constitutional violations and seeks a substantial reassessment of damages. In light of the foregoing, the appellant urges the Court to set aside the appellate judgment, declare violations of the enumerated constitutional rights, and award enhanced damages commensurate with the harm suered. E. Issues for Determination

29. Upon consideration of the pleadings, the impugned judgment, and the appellant's written submissions, we have identied the following issues for our determination in this appeal: a. Whether this Court has jurisdiction to entertain the appeal, and if so; b. Whether the appellants' rights under Articles 25, 29, 33, 48, 49, and 51 of the Constitution were violated; and c. Whether the appellant is entitled to enhanced damages of Kshs. 15,000,000/=. F. Analysis and Determination a. Whether this Court has the Jurisdiction to entertain the appeal

30. Although the parties have not raised the issue of jurisdiction as a primary question for our determination, we must, however, satisfy ourselves that jurisdiction exists. The appellant has approached this Court under Article 163 (4)(a) of the Constitution, where the appeal lies as of right in a case involving the interpretation and or application of the Constitution. In Nduttu & 6000 Others v Kenya Breweries Ltd & Another [2012] KESC 9 (KLR), this Court claried the threshold to be met under Article 163(4)(a), stating: “ ….the appeal must originate from a Court of Appeal case where issues of contestation revolved around the interpretation or application of the Constitution. In other words, an appellant must be challenging the interpretation or application of the Constitution which the Court of Appeal used to dispose of the matter in that forum. Such a party must be faulting the Court of Appeal on the basis of such an interpretation. Where the case to be appealed from had nothing or little to do with the interpretation of the Constitution, it cannot support a further appeal to the Supreme Court under the provisions of Article 163 (4)(a).”