R.M v ATTORNEY GENERAL & 4 others [2010] eKLR Executive Director of the 2nd interested party. In her affidavit, Jedidah claimed to have been informed by paralegal staff, that the petitioner had reported having been sexually harassed and that on two occasions the petitioner had been asked to strip and spread his legs causing other prisoners to mock and laugh at the petitioner. Ms Wakonyo did not identify the paralegal staff who gave her the information about the petitioner’s sexual harassment, nor has any prison paralegal sworn an affidavit to confirm the allegation. Thus, the matters deponed to by Jedidah Wakonyo in relation to the petitioner’s physical abuse or harassment is hearsay and of no evidential value. 163. Julius Kaliakamur, a prison warder at Kamiti Maximum Prison, swore an affidavit in which he maintained that although the petitioner was being held at a male prison, the petitioner is accorded separate accommodation. Kaliakamur also denied that the petitioner was subjected to physical or psychological abuse. In particular, Kaliakamur denied that the petitioner has ever been asked to strip in front of other inmates, and maintained that the petitioner has not lodged any complaint with the prison authorities regarding any mistreatment. Joyce Kabaki the Executive Officer of the 5th interested party swore that she visited the petitioner at Kamiti Maximum Prison, and that the petitioner confirmed to her that he had not received any mistreatment of any kind. In particular the petitioner denied having been sexually molested or touched physically in a sexual manner by other inmates. 164. We have evaluated all the evidence relating to the breach of the petitioner’s right against inhuman and degrading treatment. The petitioner maintained that he was subjected to physical abuse and ridicule. The attempts by the prison warder Julius Kaliakamur to deny the allegations were weak and unconvincing. Essentially Kaliakamur appears to rely on the fact that the petitioner has not lodged any complaints in accordance with The Prisons Rules. We find that it is unrealistic to expect that if indeed the petitioner had made such complaints the prison officers would incriminate themselves by acknowledging the existence of such complaints. The affidavit of Joyce Kabaki does not provide ample evidence to contradict the petitioner’s allegations as she appears to have been dealing with the petitioner’s condition as at the time of her interaction with the petitioner and not necessarily what had transpired earlier. We do note that Rule 35 of The Prisons Rules provides for searching of prisoners who are in custody. Rule 36 which provides for the manner of searching states as follows: “(1) the searching of the prisoner shall be conducted in seemly a manner as is consistent with the necessity for discovering concealed articles. (2) A prisoner shall be searched only by officers of the same sex as the prisoner.” 165. The fact that prisoners are subjected to invasive body searches including their private parts is common knowledge. This would appear to be consistent with Rule 36 of The Prisons Rules as the focus is on discovering concealed articles wherever they may be hidden. The searching of the petitioner involving his having to expose his private parts would be consistent with such strip searches. We are inclined to believe and accept the petitioner’s statement made under oath that he was subjected to humiliating invasive body searches. It is evident that, in the case of the petitioner, the strip searches were motivated by an element of sadism or mischievous curiosity, to expose the petitioner’s unusual condition. 166. In Samwel Rukenya Mburu vs Castle Breweries, Nairobi HCC 1119 of 2003, Justice Visram held that: “Prohibition against torture, cruel or inhuman and degrading treatment implies that an “action http://www.kenyalaw.org - Page 42/45