The case in which the Inspector General of police and Safaricom Limited have been sued for failure to refund cash bail that was deposited through a NPS Paybill at shauri moyo police station will be heard on 19th October 2022.
Eight petitioners who filed the suit were arrested on 23rd November 2016 and were required to deposit a police bail of Sh 40,000 in total pending court appearance.
The money which would have been previously paid in cash was deposited via Mpesa to a till number 811555 registered under the National Police Service (acc 57).
According to the advocate on record for the petitioners, Lempaa Suyianka, the paybill was at a trial phase in several police stations and was intended to carb cash deposits by suspects.
The petitioners include; Juliana Olayo Awino, Patrick Oroko Onsembi, Winnie Obure Akoth, Antonia Rose Atieno, Esther Kerubo Nyamweya, Dornie Awuoro Okongo, Pamela Adhiambo Wasuda and Margaret Moraa Mwamba.
The charges
The eight were later produced in court and charged with creating disturbance in a manner likely to create breach of peace.
The court heard that the suspects created disturbance by banging the report office counter desk and main entrance door demanding for the occurrence book to peruse.
Okoth and Awino were also charged with offensive conduct for using insulting words, calling two shauri moyo officers “Waiganjo” with intent to provoke breach of peace.
Onsembi and Awino were also charged with offensive conduct by calling another officer “Waiganjo” and “Rapist” with intent to provoke breach of peace.
It’s alleged that the suspects committed the offence on 23rd November 2016 at shauri moyo police station in Kamukunji, Nairobi county.
After being charged, the police were required to deposit in court the money the suspects had paid at the police station to be used as cash bail.
However, the OCS shauri moyo stated that such conversion was impossible due to the failure of the Mpesa system used by the police station.
“The accused were thus forced to obtain alternative sources to pay the cash bail to the magistrate court,” Suyianka said.
According to the National Police Service act and the criminal procedure code, the police are under obligation to return such sum paid as cash bail once attendance of the suspect is secured.
The police were ordered to convert the Sh 40,000 to cash bail by the magistrate following the appearance of the eight petitioners in court.
“Their failure to do so constitutes a violation of court orders and constitutes behaviour inconsistent with national values and principles required of public officers,” said Suyianka.
Suyianka questions how many other Kenyans suffered monetary loss as a result of the failure of the NPS Paybill.
Violation of rights
According to Suyianka, failure of safaricom’s Mpesa system and subsequent requirement that the petitioners find an alternative source of cash bail in a short time, or face imprisonment, resulted in violation of their constitutional rights to be released on bail pending trial.
The petitioners claim that they continued to suffer for failure of the police to return the said money resulting in them owing money to their creditors since December 2016 and thus causing their reputation to suffer.
Safaricom through Gikera and Vad Gama advocates filed a preliminary objection on grounds that the petition discloses no cause of action against them.
They want the petition to be dismissed with costs.
The petitioners want a declaration that the respondents have violated the constitutional right to bail.
They also want an order compelling NPS and Safaricom to refund the bail amount paid.
In addition, the petitioners want an order of compensatory damages to be paid by the respondents for the monetary and reputation loss they have suffered.
Other respondents in the case are the Attorney General and Ministry of Interior and Coordination of National Government.
