Dear Client and Friend,

HIGH COURT ORDERS EXPUNGEMENT OF UNLAWFULLY RETAINED CRIMINAL RECORDS FOR CHILDHOOD OFFENCES

The High Court has delivered a significant judgment on the constitutional treatment of criminal records relating to alleged offences committed by minors. In Meru High Court Constitutional Petition No. E007 of 2024, the Court ordered the expungement of a 20-year-old criminal record that had been unlawfully retained in the Criminal Records Register, holding that its continued retention violated key constitutional rights and the best-interests-of-the-child principle.

BACKGROUND

The petitioner was 9 years old when he was arrested and charged at the Tigania Law Courts in 2004. The matter was never prosecuted, and both the police and court files later went missing. Despite this, the Police captured and retained his fingerprints and personal data in the Criminal Records Register for over two decades.

The record barred the petitioner from employment and travel opportunities until Tigania Police Station later admitted the data had been recorded in error. The Directorate of Criminal Investigations nevertheless declined to expunge it, leading to the constitutional petition.

KEY COURT FINDINGS

The petition met the threshold for constitutional litigation due to the prolonged and serious nature of the violations. The Court found that the 20-year retention of the petitioner’s data violated multiple constitutional rights, including:

1. Human dignity and freedom under Articles 28 and 29;
2. The right to deletion or correction of untrue data under Article 35(2);
3. The right to freedom of movement under Article 39(2);
4. Economic and social rights under Articles 41 and 43;
5. The right to fair administrative action under Article 47; and
6. The right to fair hearing under Article 50.

The Court further confirmed that it has the constitutional power to order expungement, even in the absence of a statutory procedure, and that the petitioner was entitled to monetary compensation for the long-term violation of his rights.

FINAL ORDERS ISSUED

The Court ordered:

1. Expungement of the petitioner’s name, fingerprints, and personal data from the Criminal Records Register.
2. Issuance of a clean Certificate of Good Conduct with no adverse reference.
3. General damages of Kshs. 500,000 for rights violations.
4. Payment of the costs of the petition to the petitioner.

IMPLICATIONS FOR CLIENTS AND INSTITUTIONS

Criminal records tied to alleged offences committed by minors, especially incomplete or abandoned matters, cannot lawfully follow individuals into adulthood. Law enforcement agencies are under a constitutional obligation to delete or correct outdated, erroneous, or improperly retained records.

Employers, HR teams, and compliance units must exercise heightened caution when interpreting Police Clearance Certificates, particularly where entries relate to childhood or unresolved cases. The judgment reinforces the judiciary’s readiness to fill statutory gaps where unregulated administrative practices threaten constitutional rights.

CONCLUSION

This judgment is a significant addition to Kenya’s growing jurisprudence on the treatment of childhood criminal records. We were honoured to represent the petitioner in this matter, which the Firm handled pro bono.

The case was handled by Dr Muthomi Thiankolu SC, Messrs Wanyenji Dennis Njoroge and Mr Kenson Mutethia, Advocates.

With warm regards,

Samuel Karanja

Managing Partner

Muthomi & Karanja Advocates