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ational as her guardian and Next friend) & 11 others v COMMISSIONER OF POLICE/INSPECTOR GENERAL OF THE NATIONAL POL (II) of the Constitution of Kenya, 2010 provides:“(6) The Director of Public Prosecutions shall exercise State powers of prosecution and may— (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed; (b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and (c) subject to clause (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b). 7……. 8…….. 9……… 10………. (11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.” It is therefore clear that it is the duty of the Director of Public Prosecutions to institute and undertake criminal proceedings against any person before any court and in doing so shall have regard to the public interest, the administration of justice and the need to prevent and avoid abuse of legal process. The issue for determination in this petition is whether failure on the part of the police to conduct prompt, effective, proper and professional investigation into the petitioners’ complaints of defilment and other forms of sexual violence infringes on petitioners’ fundamental rights and freedoms under all or any Articles 21(1),(3),27,28,29,48,50(1) and 53(1), (d) of the Constitution of Kenya, 2010? The petitioners as per affidavit in support, which had not been controverted by the respondents in anyway and which I find to be true having not been challenged have confirmed that they have been victims of defilment, and other forms of sexual violence and child abuse. The reports of defilement and other forms of sexual abuse were reported to various police stations. Police unlawfully, inexcusably and unjustifiably neglected, omitted and/or otherwise failed to conduct prompt, effective, proper and professional investigations to the said complaints. That failure caused grave harm to the petitioners and also created a climate of impunity for defilement as perpetrators were let free. This infringedthe petitioners’ fundamental rights and freedoms under inter alia Articles 21(1),(3), 27,28,29,48,50(1) and 53(1),(d) of the Constitution of Kenya, 2010 and the general rules of international law, including any treaty or convention ratified by Kenya, which form part of the law of Kenya as per Article 2(5) and 2(6) of the Constitution of Kenya, 2010. That these international instruments are applicable to the petitioners cases. The relevant conventions include: 1. The United Nations Convention on Rights of Child notably Article 2, 3, 4, 5, 6, 7 and 8. http://www.kenyalaw.org - Page 9/17

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Petition 8 of 2012: C.K and al. (petitioners) versus Commissioner of Police/Inspector General of the National Police Service et al. (respondent)

Cases

Country

Latitude: -1.303208

Longitude: 36.777356712

Country (linked Cases): Kenya

Court: Kenya: High Court, Kenya

Date of judgement: May 27, 2013

Complainant: C.K. et al.

Articles alleged: Constitution of Kenya, Articles 2 10 19 21 22 23 27 28 29 48 50(1) and 53; Universal Declaration of Human Rights, Articles 1 2 3 5 7 8 and 10; African Charter on the Rights and Welfare of the Child, Articles 1 2 3 4 16 and 27; African Charter of Human and Peoples Rights, Articles 2 3 4 5 6 7 and 8; Children Act, Section 3 5 15 and 22; Sexual Offences Act; Police Act

Articles violated: Constitution of Kenya (2010), Articles 21(1), 21(3), 27, 28, 29, 48, 50(1) and 53(1) (c); Universal Declaration of Human Rights, Articles 1 to 8 (inclusive) and 10; United Nations Convention on the Rights of the Child, Articles 2, 4, 19, 34 and 39; African Charter on the Rights and Welfare of the Child, Articles 1, 3, 4,16 and 27; African Charter on Human and Peoples' Rights, Articles 2 to 7 (inclusive) and 18

Keywords

Child abuse
Defilement (Rape of children)
Investigation
Police
Sexual offences

Gender of victim

Female: Girl (under 18)

Gender of accused/perpetrator

Gender not specified

Language: English

Summary: The petition was submitted by ten children, Pamela Waruguru and Ripples International. The petition was brought under Articles 2, 10, 19, 21, 22, 23, 27, 28, 29, 48, 50(1) and 53 of the Constitution of Kenya, 2010, Article 1, 2, 3, 5, 7, 8 and 10 of the Universal Declaration of Human Rights, Articles 1, 2, 3, 4, 16 and 27 of the African Charter on the Rights and Welfare of the Child, Articles 2, 3, 4, 5, 6, 7 and 8 of the African Charter of Human and Peoples Rights, Section 3, 5 15 and 22 of the Children Act 2001 (Chapter 141) of the Laws of Kenya, the Sexual Offences Act, 2006 (Act No.3 of 2006 and the Police Act (Chapter 84) of the Laws of Kenya. The petitions sought a series of reliefs, including: 1. A declaration to the effect that the neglect, omission, refusal and/or failure of the police to conduct prompt, effective, proper and professional investigations into the first eleven petitioners’ complaints of defilement violates their fundamental rights and freedoms. Each of the 11 petitioners were on all material dates relevant to these proceedings a “Child” and a victim of “Child abuse” and “defilement” as respectively defined under the Children Act, 2001 and the Sexual Offence Act, 2006. They made reports of the acts of defilement at various police stations within Meru County and the police officers at those various Police Stations neglected, omitted, refused and or otherwise failed to conduct prompt, effective, proper and professional Investigation into the petitioners’ complaints. A declaration is made to the effect that the neglect, omission, refusal and/or failure of the police to conduct prompt, effective, proper and professional investigations into the first eleven petitioners’ complaints of defilement violates the first eleven petitioner’s fundamental rights and freedoms. An order of mandamus be and is hereby made directing the Commissioner of Police/Inspector General of the National Police Service together with his agents, delegates and/or subordinates to conduct prompt, effective, proper and professional investigations into the 1st to 11th petitioners’ respective complaints of defilement and other forms of sexual violence.

Primary Documents

Kenya-case-High Court-Meru-CK et al-Petition 8 of 2012-2013-eng.pdf
English
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Kenya-cas-Haute Cour de Meru-C.K. et autres-Petition 8 de 2012-2013-fr-pdf.pdf
French
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Petition 8 of 2012: C.K and al. (petitioners) versus Commissioner of Police/Inspector General of the National Police Service et al. (respondent)

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