C O I & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] KECA 680 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that forced anal examinations were unconstitutional, and evidence from them cannot be used in criminal trials.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Were the examinations and tests conducted on the appellants lawful and/or reasonable in the circumstances?
- 2.Could the results obtained from those examinations be properly admitted as evidence in the criminal proceedings?
- 3.Were the appellants' rights violated at Kwale Prison?
- 4.What orders should issue?
Key legal issues
#Lawfulness and reasonableness of the compelled anal examination and blood testing
The examination was unconstitutional, unreasonable and totally unnecessary: Section 36 of the Sexual Offences Act permits examination only for offences under that Act, whereas the tests were aimed at proving an offence under Section 162(a) of the Penal Code, and no proper basis was laid before the subordinate court.
The court read Section 36 restrictively: a court's power to direct an 'appropriate sample' is subject to limitation, applying only to offences under the Sexual Offences Act and requiring judicial, lawful exercise of discretion. Here the purpose was to establish an offence under Section 162(a) of the Penal Code, the appellants were not arrested in the act, there was no complainant, and no reasonable suspicion was shown. The order therefore went beyond the court's mandate contrary to Article 24, and any consent could not cure the illegality.
Effect of alleged consent to the examination
Even if given, consent cannot validate an otherwise illegal order; in any event, in the prevailing circumstances the alleged consent was not voluntary.
The respondents argued counsel's statement that the appellants were ready to undergo any test amounted to consent. The court held that consent cannot validate an illegal order. It further found, on the record (counsel appearing on a holding brief with limited instructions, and PRC forms signed under coercion as alleged), that the alleged consent did not qualify as voluntarily given.
Admissibility of the examination results and self-incrimination
Admission of the results violated the appellants' right against self-incrimination under Articles 49(1)(d) and 50, and such evidence should be expunged from the criminal proceedings.
Because the examinations were illegally ordered and conducted, admitting the resulting evidence offended the rule against self-incrimination. The court endorsed Nyamu, J.'s statement that pre-hearing investigations become unconstitutional where they obtain evidence unlawfully or infringe the rule against self-incrimination or the right of silence.
Alleged violations at Kwale Prison
The learned Judge could not be faulted for declining to determine this issue because it was not pleaded in the petition.
Save for depositions in the 1st appellant's affidavit, the appellants neither pleaded the prison treatment nor sought declaratory orders or damages on it. Pleadings exist to define issues with certainty and give notice to the other party; accordingly no determination on that unpleaded complaint could be made on appeal.
Approach to constitutional remedies and damages
The primary purpose of a constitutional remedy is to vindicate rights and deter future infringement; damages are a secondary remedy for only the most appropriate cases.
Drawing on South African and Canadian authority, the court framed remedies around vindication rather than compensation, citing the Dendy principles and the Doucet-Boudreau criteria for a 'just and appropriate' remedy. In the event, the court granted declarations of violation and costs rather than damages, which had been sought in the petition.
Legal principles established
#- A subordinate court may only direct a medical examination of an accused under Section 36 of the Sexual Offences Act in respect of an offence committed under that Act, and only on a proper factual basis; such an order must comply with Article 24 of the Constitution.
- An order for medical examination made without a proper basis is illegal, and a person's consent cannot validate it.
- Evidence obtained from an unlawfully ordered medical examination, being in breach of the rule against self-incrimination, must be expunged from the criminal proceedings.
- A constitutional petition cannot succeed on matters not pleaded; alleged violations must be raised in the pleadings for the court to make declaratory findings on them.
Court orders
#- 1.The judgment and decree given on 16th June 2016 is set aside.
- 2.An order that the respondents' conduct in subjecting the petitioners to anal examinations violated the petitioners' rights under Articles 25, 27, 28 and 29 of the Constitution.
- 3.An order that the use of evidence obtained through anal examinations of the petitioners in criminal proceedings against them violates their rights under Article 50 of the Constitution.
- 4.The appellants are awarded costs of the appeal as against the 4th respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Constitutional & Human Rights Division Petition No. 51 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's constitutional petition decision (Articles 164 and 165 of the Constitution of Kenya 2010, as implicitly engaged; no specific provision is expressly cited for the appeal)
Relief refused
#Declaration and damages in respect of alleged violations at Kwale Prison
The alleged violations at Kwale Prison were neither pleaded nor prayed for in the petition; pleadings must define the issues so the court and the other party know the case to answer.
Costs
Costs of the appeal awarded to the appellants as against the 4th respondent (Director of Public Prosecution); no costs order made against the other respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The judgment and decree given on 16th June 2016 is hereby set aside.
An order that the Respondents conduct in subjecting the petitioners to anal examinations violated the Petitioners' rights under Articles 25,27,28 and 29 of the Constitution.
An order that the use of evidence obtained through anal examinations of the petitioners in criminal proceedings against them violates their rights under Article 50 of the Constitution.
An order that the appellants are awarded costs of the appeal as against the 4th respondent.
In the circumstances, we find that the examination was not only unconstitutional but unreasonable, and totally unnecessary.
our finding is that the subordinate court acted beyond its mandate in granting the order in issue contrary to Article 24 of the Constitution.
Issues in the judgment
#The judgment states that the High Court dismissed the petition 'by a judgment dated 16th June, 2015' in the narrative, while the memorandum of appeal and the coram state the judgment was dated 16th June, 2016; the later date is used throughout the appeal record.
The court's final orders describe declarations regarding 'Articles 25,27,28 and 29' although the analytical discussion of the rights engaged centres on dignity, privacy and fair trial (Articles 28, 31, 49 and 50); Article 25 is listed among non-derogable rights in the analysis. The orders stand as issued.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "C O I & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] KECA 680 (KLR)", Case Analysis (2018). Civil Appeal No. 56 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/680/eng@2018-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.