How trumped-up porn case cost police Sh4.8m

Some overzealous police officers who brought trumped-up pornography charges against a filmmaker and six of his employees have been ordered to pay Sh4.8 million in damages for malicious prosecution and loss of property.

The High Court found the officers culpable and held them jointly liable along with their superiors.

Justice Florence Muchemi ordered the Inspector General of Police, the Officer Commanding Juja Police Station, Inspector Munyiri, Police Constable Martin Kiambi, Corporals David Gacheru and Bonphace Ouma, and Police Constables General Kariuki, Mohammed Hassan, and Esther Maina to jointly pay Sh3.5 million to the seven victims of the illegal arrest.

Additionally, the filmmaker, Dick Omondi Ouko, was awarded Sh1 million for loss of business and property, and a further Sh300,000 for pain and suffering.

Justice Muchemi ruled that the officers arrested Ouko, Shenaz Abdalla, Shamim Erica, Gertrude Cherotich, Elizabeth Wambui, Mukami Peggie, and Anita Njoroge without a formal complaint, without a warrant, and for an offence not recognised in law.

“The offence the petitioners were charged with was sharing pornographic content. It is trite law that one can only be arrested for an offence known to law. Sharing pornography is not a listed or recognised offence in law,” Justice Muchemi said.

“Therefore, the arrest by the respondents was illegal and unlawful, made without a complainant, a warrant, or a cognisable offence. This contravened Article 29(1) of the Constitution, which protects individuals from being deprived of freedom without just cause.”

The judge also found that M-Pesa statements submitted in court supported Ouko’s claim that when he stopped sending money to some of the officers, they retaliated with a raid and subsequent arrest.

“The 1st petitioner produced M-Pesa statements showing he sent money to the 5th and 6th respondents on various occasions from November 2022. When the payments ceased, the 1st petitioner’s house was raided and the petitioners were arrested. The statements support the theory that once payments stopped, the officers retaliated by pressing bogus charges,” the judge noted.

Ouko, a filmmaker and activist, told the court that he had been contracted to shoot a racing movie when Police Constable Martin Kiambi approached him under the guise of investigating a burglary.

Ouko said Kiambi demanded licences for the film and internet mast, and threatened to report them to the Communications Authority of Kenya if they did not comply. Ouko declined, arguing the filming was taking place in a private residence and refused to offer a bribe.

On 3 November 2022, Kiambi returned with four officers from the Directorate of Criminal Investigations (DCI), among them Gacheru and Ouma, who arrested the seven individuals and confiscated filming equipment.

Ouko said he paid Sh10,000 in cash bail to avoid a night in custody and paid the same for each of his employees, but was never issued a receipt. He further claimed the officers demanded an additional Sh10,000 to release the confiscated equipment, which he paid due to the sensitive client data contained on the computers.

Ouko testified that from November to April 2023, officers—particularly Gacheru and Ouma—demanded monthly payments from him, which he initially complied with until he stopped in April.

On 13 May 2023, a group of at least 14 police officers, led by Kiambi, raided Ouko’s home without providing a reason. His colleagues began filming the incident, prompting the officers to confiscate their phones.

Ouko said he was taken to another place by Kiambi, Kariuki, and Hassan, who allegedly assaulted him and demanded he delete the videos.

They were taken to Juja Police Station, where they were informed they would be charged with the offence of “sharing pornography.”

Ouko said he was asked to part with Sh100,000 to avoid charges, which he refused.