The High Court has awarded former Jomo Kenyatta University of Agriculture and Technology (JKUAT) student Allan Omondi KSh8 million in constitutional damages after finding that police officers brutally assaulted and unlawfully detained him before the Office of the Director of Public Prosecutions (ODPP) failed to implement its own decision to divert the matter, denying him justice for years.
In a judgment delivered on July 2, Justice P.M. Nyaundi held that the conduct of the police violated Omondi’s constitutional rights to human dignity, freedom and security of the person, while the ODPP’s prolonged inaction infringed his right of access to justice.
The case arose from an incident on November 11, 2019, when Omondi, then a JKUAT student, was accosted by four police officers near the university hostels in Juja as he returned from buying eggs for his lunch. He told the court that although student protests were taking place in the area, he was not involved in the demonstrations. Instead, he was allegedly beaten with batons, kicked repeatedly, handcuffed in a painful position inside a police vehicle and driven around as officers accused him of being a member of the outlawed Mungiki sect because of his dreadlocks.
Omondi further testified that he was taken to Juja Police Station, where the assault continued before he was locked in a crowded cell despite informing officers that he suffered from a chest condition and required an inhaler. He was only released later that night after his mother intervened and was subsequently treated at AAR Hospital.
The assault, which was captured on video and widely circulated on both local and international media platforms, prompted investigations by the Independent Policing Oversight Authority (IPOA). According to the evidence before the court, IPOA identified some of the officers involved, including Police Constable Boniface Muthama, before forwarding its findings to the ODPP.
The prosecution subsequently concluded that there was sufficient evidence to charge the officers with assault causing actual bodily harm. However, instead of preferring criminal charges, the ODPP directed that the matter be resolved through diversion.
Despite repeated follow-ups by Omondi’s advocates, no diversion agreement was ever implemented and no officer was prosecuted.
The Inspector General of Police, the Attorney General and the ODPP opposed the petition, arguing that it failed to meet the constitutional precision required in constitutional litigation. They further contended that the petitioner had not demonstrated any constitutional violations and maintained that the dispute ought to have been pursued through ordinary civil or criminal proceedings.
The respondents also argued that courts could not compel the ODPP to prosecute individuals because prosecutorial decisions are constitutionally protected under Article 157.
Justice Nyaundi, however, rejected those arguments, finding that the petition clearly identified the constitutional provisions allegedly violated and the manner in which those violations occurred.
Referring to the principles established in Anarita Karimi Njeru, the judge held that constitutional petitions need not achieve drafting perfection provided they clearly communicate the alleged infringements.
Turning to the evidence, Justice Nyaundi found that Omondi’s account of the assault had not been credibly challenged.
“One fact stands out: the Petitioner’s assertion that he was assaulted by police officers on 11 November 2019 is not credibly disputed,” the judge held.
The court noted that although electronic video evidence had been excluded, the remaining evidence overwhelmingly supported Omondi’s case. It observed that the officers identified at the scene had been interdicted, while IPOA’s independent investigations corroborated the petitioner’s account and formed the basis upon which the ODPP concluded that assault charges could be sustained.
Medical evidence presented before the court further showed that Omondi continues to suffer from post-traumatic stress disorder (PTSD), anxiety, depression, intrusive memories, sleep disturbances and an enduring fear of police officers years after the incident.
Justice Nyaundi rejected the respondents’ argument that the matter merely disclosed an ordinary assault claim, holding instead that where State officers violate constitutional guarantees protecting human dignity and personal security, the court has a duty to intervene.
The judge was equally critical of the ODPP’s failure to operationalise its own diversion decision, observing that the prolonged delay effectively denied the petitioner access to justice.
“A diversion decision that is never implemented is, in effect, no decision at all, and the resulting vacuum cannot be reconciled with the constitutional obligations that bind the 2nd Respondent,” the court stated.
According to the judge, the ODPP bears the statutory responsibility of approving diversion, preparing diversion agreements and ensuring the process is concluded. Having opted for diversion instead of prosecution, the office could not simply abandon the process indefinitely. Justice Nyaundi consequently declared that the assault, arrest and detention violated Omondi’s rights under Articles 28 and 29 of the Constitution, while the ODPP’s prolonged inaction violated his right of access to justice under Article 48.
“The assault and subsequent detention at the police station infringed his right to human dignity under Article 28, and his right to freedom and security of the person under Article 29, including the right not to be subjected to cruel, inhuman, or degrading treatment,” the judge ruled.
Although the court acknowledged the constitutional independence of the ODPP, it emphasized that such independence cannot shield the office from accountability where its inaction results in the violation of constitutional rights.
“Independence carries constitutional responsibilities, and it does not excuse institutional inertia that undermines the rights of a complainant,” Justice Nyaundi observed.
In the end, the court declared that Omondi’s constitutional rights had been violated and awarded him KSh8 million in damages payable jointly by the Inspector General of Police and the ODPP. The court also awarded him the costs of the petition, while the Attorney General and IPOA escaped liability.
The judgment, delivered nearly seven years after the assault, underscores that State agencies not only have a duty to respect constitutional rights but must also act promptly and effectively when violations by law enforcement officers are established.
