https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11413

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. 482 OF 2019** **ALLOYS JOSEPH ABUGA……..…………......…………..1ST PETITIONER** **FRANCIS XAVIER MAYAKA………………...…………...2ND PETITIONER** **DAVID OMBAGI NYAJUNDI…………………...………..3RD PETITIONER** **FRANCIS ONARI OBAGA…………………….…………...4TH PETITIONER** **EZEKIEL MOTAROKI…………………..…………...………5TH PETITIONER** **VERSUS** **CABINET SECRETARY,** **MINISTRY OF DEFENCE……………………..…..………1ST RESPONDENT** **THE ATTORNEY GENERAL………..…………..…………2ND RESPONDENT** **JUDGMENT** **Introduction** 1. The Petition dated 23rd November 2019 is supported by the Petitioners’ affidavits in support of even date. 2. The Petition arises out of the alleged unlawful arrest, being kept incommunicado, torture and prolonged detention, charging and sentencing by the Respondents in violation of petitioniners rights under Articles 25, 29, 48, 50 and 51 of the Constitution. 3. Consequently, the Petitioners seek the following reliefs: - 4. **General damages for compensation for torture and unlawful imprisonment under inhuman conditions by the government agents.** 5. **A declaration that the proceedings in the court martial were unlawful, therefore null and void.** 6. **That the termination the petitioners’ employment was therefore illegal and void.** 7. **That the orders and directives by the said Eighty-Two Airforce (82 Airforce) was illegal and unconstitutional and therefore null and void.** 8. **Costs of the Petition.** 9. **Any other relief that th****is Honourable Court considers appropriate and just to grant.** 10. In opposition to the Petition, the Respondents filed a replying affidavit dated 22nd August 2023. 11. The matter proceeded by way of *viva voce* evidence. **The Petitioners’ Case** 1. The Petitioners averred that they were employees of the Kenya Airforce Officers earning a salary of Kshs. 1900/- only. 2. The Petitioners averred in the year 1982, they were arrested, charged with the offence of attempted coup and were sentenced to serve imprisonment terms without being accorded an opportunity to be heard. The Petitioners instituted the instant Petition against the Attorney General and the Department of Defence for among others, for failure to reinstate them to their employment as Airforce Officers No. s 022614, 027263, 022643, 023412 and 023283. 3. The Petitioners contend that Eight Two Airforce, the body that terminated them from employment maliciously, was thereafter annulled prejudicing their livelihood and their future on framed up charges of having participated in the 1982 coup without any evidence. They further contend that their rights under Articles 25, 29, 48, 50 and 51 of the Constitution were violated and grossly abused when they were tortured and kept in solitary confinement under inhuman conditions in cells flooded with water and connected with live wires of electricity for shock. They were additionally tortured in Kamiti Maximum prison, Manyani, Shimo la Tewa, Naivasha amongst other prison facilities where they slept in cold water, were stripped naked, beaten up by Government agents and blind folded and their private parts were squeezed and pulled on by the Government secret agents. 4. **PW1, Captain Francis Xavier Mayaka** filed the affidavit dated 26th November 2019 and testified before this Court 24/10/2023. He testified that he was commissioned into the Airforce on 3rd July 1978 as a direct entry officer in the rank of Lieutenant and was promoted two years later, in 1980, to the rank of Captain. 5. The witness testified that after the so called ‘coup attempt of 1982’ he and some of his colleagues were arrested and subsequently driven in a truck to Naivasha Maximum prison for for further interrogation. He testified that they were forced to sleep in water-logged cells as a form of extracting information from the. The witness testified that he was tortured for 8 months without being put on trial. On 14th March 1983, they were put into trucks and transported to Kamiti Maximum Prison where they were surrounded by senior officers and informed that he had been dismissed from the Armed Forces and then given Kshs. 14/- as transport to his home from Kahawa to Nairobi city. 6. The witness testified that they underwent severe torture and underwent serious stress and were also denied benefits upon dismissal. 7. On cross-examination by Ms. Goro, the witness confirmed that he filed the Petition on 23/11/19, (almost 30 years from the date of the alleged incident). Asked why it took him long, he explained: “I filed when I know there is chance to get justice” 1. **PW2, Elishibah Moraa Abugah,** testified that she is the wife of **Alloys Joseph Abuga (deceased)** who was working with Kenya Airforce as an armament technician from 1978 to 1982 when he was arrested. She testified that the deceased was only able to talk to her after he was released from custody from Shimo la Tewa prison where he underwent torture. She said the husband did not live to see this case through. The witness materially relied on the contents of the affidavit of Alloys Joseph Abuga which was on record. 2. **PW3 David Ombagi Nyakundi**, relied on his affidavit dated 23rd November 2019 and testified that he was enlisted with the Kenya Airforce on 2nd September 1977. On the material day, he was working at Eastleigh Airbase where he was arrested by military police who took him to Kenya Army Headquarters where they stripped him naked, ferried him to Kamiti Maximum Prison where he was tortured, beaten up, mocked and threatened with death by officers shooting their colleagues. The witness further testified that he was sleeping on the floor naked for seven days without food and put in solitary confinement. He was then transferred to Naivasha Maximum Prison in September 1982 and subjected to more torture and slept in a water-logged cell for more than seven days. 3. On cross-examination by Mr. Kiiilu, he explained that on 13th April 1983, he was declared free and rearrested on the spot at Naivasha Maximum Prison, then arrested and served with detention forms by one Police Commissioner Philip Kilonzo which forms were signed by Justus Ole Tipis declaring him detained as detainee. The witness testified that he was detained up to 12th December 1986 when he was released with strict instructions never to be seen near any military installations or in the company of five people. He further stated tat his parents thought he was killed in the 1982 coup and were shocked to see him. He was categorical that he was not court martialled. Asked to explain the long delay before instituting the case, he responded: *“I did not file the case against the regime that time. It took me to settle down out of fear. Come 2019, I sought help for compensation for pains I underwent. I met a lawyer who could assist.”* 1. **PW4, Francis Anari Obaga** relied adopted the contents of his affidavit dated 23rd November 2019 to form part of his evidence in chief. He testified that he was enlisted into Kenya Air Force on 3rd March 1978 and given service number 023412. He attended basic armed forces military training college at Lanet and passed as a private. He was then posted to Kenya Airforce Eastleigh and was transferred to Embakasi where he attained Gunner Grade One. The witness testified that he was a sportsman in Lawn Tennis and they were given four days off duty on 27th July 1982 where he went home in Buruburu Phase Five. On 1st August 1982, his wife woke him up and she informed him that through the radio she had heard that the government had been taken over by the armed forces. 2. The witness testified that he reported to his base Embakasi Airbase and they waited for orders when the Kenya Army surrounded them and arrested them and shot him on his left leg. He was taken to Eastleigh MRS where he was detained for a day and transferred to Memorial Hospital the next day for further surgery but at the hospital they were chased away without treatment and were taken to Kamiti Maximum Prison. At Kamiti Maximum Prison his leg began to swell and rot when the Prison authority ordered him to be taken to Memorial Hospital where he was admitted and operated on. He was then taken from the hospital to Naivasha Maximum Prison where he was interrogated, tortured, slept in a water logged cell and went without food for seven days. Afterwards he was taken back to Kamiti Maximum Prison then to the court martial at Langata barracks where he was sentenced to 18 years. 3. The witness stated that he was taken to Industrial Area prison then transferred to Kodiaga Maximum Prison where he stayed for six months then transferred to Naivasha Maximum Prison. He appealed his conviction and was transferred to Kamiti Maximum Prison to await his hearing and after his appeal was heard, the court did not find him guilty and the sentence was set aside and he was freed without any charges. He then wrote to D.O.D requesting for his dues to which they declined and stated that no payment was being made to any officer discharged at the time of the coup attempt. 4. **PW5 Ezekiel Motaroki Okero** adopted the deposition in his affidavit sworn on 23rd November 2019 as forming part of his testimony in chief when he testified in Court on 23/5/2025. He told this Court that he was enlisted to Kenya Airforce on 3rd March 1978 and went through basic military training at Forces College at Lanet. He was then posted at Eastleigh Airbase and trained as a caterer grade one then later transferred to Embakasi airbase in June 1980. On 1st August 1982, he stated that he was at his station when at 4pm Kenya Army trucks arrived and they were called to the parade and the major requested them to hand over their guns and told them that they were okay as they never wanted to overthrow the government. They were instructed to board on the trucks and they were taken to Kamiti maximum Prison where he was stripped naked and beaten up and some of them were killed. The witness stated that he was tortured, his testicles pulled and he was kicked. He was then transferred to Naivasha Maximum Prison and tortured some more and slept in a water logged cell for seven days without food. After four months, he was transferred to Kamiti Maximum Prison where he was sacked and released without any charges. On his release he was instructed never to be seen near any military installations or in the company of five people. The witness stated that he contracted diarrhoea and back problems because of the torture. **The Respondents’ Case** 1. Rebutting the petition, the respondents through **Major Edwin Kibiru Muta (130057)** testified as DW1 and he relied on his replying affidavit and witness statement dated 22nd August 2023. Major Edwin Kibiru Muta testified that he is a commissioned officer appointed as Staff Officer II at the Record Department of the Kenya Defence Headquarters in Hurlingham Nairobi. He described his work as being in charge of all records of the Kenya Defence Forces (KDF) personnel. 2. As regards the 1st petitioner, the witness testified that he was arrested during the attempted coup for his participation in arming himself with a SMG assault rifle, ammunition and a pistol and patrolling Nanyuki Air Base. He was arraigned before the court martial and charged with the offence of mutiny contrary to Section 25(2) of the Armed Forces Act. The court martial found him guilty and sentenced him to imprisonment for nine years pursuant to Section 103(1)(b) of the Armed Forces Act (repealed) and his sentence was later commuted to four years. Further, pursuant to section 103(5) of the Act, a sentence of imprisonment automatically translated into dismissal from the Armed Forces. 3. The witness testified that the 2nd petitioner was a commissioned officer of the Kenya Air Force holding the rank of a Captain when the 1982 attempted coup occurred. However, on 22nd August 1982, the Kenya Airforce Service was formally disbanded, necessitating a review of the terms and conditions of service of the residue service personnel. Exercising its power under Section 171(2) of the Armed Forces Act, the Defence Council honourably discharged the 2nd petitioner from service, with full benefits and proceeded to issue him with a certificate of service as required by the law. Thus he is not entitled to any relief he seeks as he held commission under the pleasure of the president, which was then terminated and he was properly compensated. 4. As regards the 3rd petitioner, the witness testified that he was lawfully arrested for his involvement in the 1982 attempted coup for the offence of misprision of treason. The 3rd petitioner underwent formal disciplinary procedures culminating in his imprisonment and subsequent dismissal from the Kenya Armed Forces. The witness further testified that he was properly detained as under the law at the time, the Minister for the time being was responsible for matters of Internal Security had the authority to detain any person if he found it to be proper in the interests of public security. 5. DW1 testified that the 4th petitioner was arrested for his involvement in the 1982 coup. At the height of chaos caused by the said attempted coup, the 4th petitioner was traversing between Eastleigh Air Base, Embakasi and Nairobi in unlawfully commandeered civilian vehicles while looting and plundering. He and his accomplices were ambushed by the General Service Unit and upon resisting arrest, he was shot on the leg, after which he was accosted and accorded full medical care. The 4th Petitioner was charged with the offence of mutiny contrary to Section 25(2) of the Armed Forces Act and was presented before the Court Martial where he pleaded guilty and was sentenced to eighteen years imprisonment, later reduced to nine years. The witness further stated that the 4th Petitioner thereafter appealed to the High Court in Appeal No. 175 of 1984 and therefore he was not denied the right to be heard. 6. As regards the 5th petitioner, the witness testified that he was arrested for his involvement in the 1982 attempted coup for the offences of treason and misprision of treason after which he was tried, convicted and incarcerated at Kamiti Maximum Prison. On 3rd February 1983, the Commander in Chief of the Armed Forces granted the 5th petitioner and 603 other prisoners amnesty after which they were released on 5th February 1983. At all times, he was properly detained as under the law of the time, the Minister for the time being responsible for matters of internal security had authority to detain any person if he found it to be proper in the interests of public security. Further Section 81(2) of the repealed Constitution provided that the restriction of a person’s freedom of movement while the person is under lawful detention did not amount to contravention of any right of freedom. The witness further stated that the Petitioners are guilty of laches having instituted their claim more than thirty five years since the same became due hence the suit is an abuse of the court process and ought to be dismissed. 7. The petition was disposed of by way of written submissions. **Petitioners’ Submissions** 1. The petitioners submitted that the respondents did not explain to the court why they did not comply with Section 70, 72 and 74 of the Constitution (repealed). Further, the respondents did not observe the right to a fair hearing under section 77 of the Constitution as they did not avail a copy of the court martial proceedings but only produced one charge sheet for one Petitioner. The Petitioners further submitted that the Respondents did not observe the provisions of Section 72 of the Constitution as they illegally held and detained the Petitioners. Citing the decisions in **Peter Tonny Wambua vs A.G. [2017] eKLR** and **Dewish Gumber Osire vs Cabinet Secretary Ministry of Defence Petition No. 572 of 2013**, the Petitioners argued that Section 72(3)(b) of the Constitution shifted the burden of proof to the Respondents to show that the Petitioners having being arrested were taken to court within the constitutionally sanctioned period. 2. The Petitioners further relied on the cases of **Civil appeal No. E093 of 2021 The Attorney General vs Woi Samuel Chege Gitau & 283 Others** and **Misc. Application No. 293 of 1993 Captain Geoffrey Kusoga vs A.G.** and submitted that Justice Akilano Akiwumi found that the new outfit 82 Airforce was not founded on the Armed Forces Act and was therefore illegal. He further held that since the Petitioners were employees of the Kenya Airforce and not 82 Airforce made all the arrests and charges conducted against the Petitioners null and void. The petitioners argued that the court martial was not properly constituted as per the law as it was scheduled to favour the Nyayo era regime as the 82 Airforce which formed the court martial was found to be unconstitutional. 3. The Petitioners submitted that they have demonstrated the violation of their rights from the time of their arrest by the army. Reliance was placed in the case of **Matiba vs Attorney General [1990] eKLR**. The Petitioners further submitted that they were arrested, humiliated, treated in an undignified manner and illegally detained incommunicado for longer periods of four to five months while not in communication with their relatives. 4. On the issue of whether the Constitution could apply retrospectively, the Petitioners relied on **Article 262 of the** **Constitution** and the case of Petition No. 386 of 2015 (no citation given) and argued that the constitution will not be invalid if it operates retrospectively but will be invalid if it deprives one of his vested right which are bound to be respected by the state. The Petitioners asserted that they produced evidence which showed that they were inhumanly treated, tortured, intimidated, assaulted and dehumanized by the agents of the state and they deserve to be compensated. The petitioners propose a sum of Kshs. 23 million for each petitioner and supported their contentions with the decisions in **Petition No. 141 of 2011 Rumba Kinuhia vs The Attorney General**; **HCCC No. 1408 of 2004 Harun Wakaba Ihungu vs The Attorney General**; **Appl. No. 1411 of 2004** (no citation given) and **Benedict Munene Kariuki & 14 Others vs The Attorney General HC Petition No. 722 of 2009** where the courts awarded Kshs. 1.5 million and Kshs. 2 million as general damages to the petitioners. 5. The Petitioners cited the cases of **Civil Appeal No. E093 of 2021** (no citation given); **Dominic Arony Amolo vs The Attorney General [2003] eKLR** and **Joan Akinyi Kaba Sellah & 2 Others vs The Attorney General Petition No. 4 of 2014** and submitted that constitutional claims are not subject to limitations and laches. The judge observed as follows:- ***Nonetheless, take into account the views of the court with regards to limit action respect claims for enforcement of fundamental rights. I take into account the views of the court with regard to limitation in respect of claims for enforcement of fundamental rights. In line of cases such as HCC No. 845 of 2003 (unreported) courts have consistently held that there is no limitation with respect to constitutional petition alleging violation of fundamental rights.*** 1. The Petitioners submitted that they were employees of the Kenya Airforce with the 1st Petitioner at the rank of Senior Private earning Kshs. 1,900/-. The petitioners therefore urge the court to compensate them using the current salary of an officer in similar rank at a sum of Kshs. 127,000/-. They further seek to be compensated for damages for torture, unlawful imprisonment and unlawful termination at the tune of Kshs. 23 million with the 4th Petitioner being compensated at Kshs. 28 million. Reliance was placed in the cases of **David Gitau Njau vs Attorney general [2013] eKLR** where the court assessed damages at Kshs. 8 million and Court of Appeal Case No. 79 of 2012 **Peter M. Kariuki vs Attorney General (unreported)** where the appellant was awarded Kshs. 15 million as damages. 2. Pursuant to Rule 3 of the Armed Forces Act Rules of procedure enacted under Section 80 and 82 of the Armed Forces Act, the Petitioners argued that they were never taken before their Commanding Officer of the Kenya Airforce Embakasi, Eastleigh Airbase, Nanyuki base where they administratively belonged or before the commanding officer Air Force Air Defence Control Unit where they were physically attached, but instead they were taken before Brigadier A.K. Cheruiyot and Major Mwangi of the military intelligence. **The Respondents Submissions.** 1. The Respondents identified four issues for determination as follows:- *whether the Petitioners claim is invalid by reason of inordinate delay; whether the claims for torture, inhuman and degrading treatment were proved; whether the claim for general damages for compensation for torture is valid and whether he proceedings before the Court martial leading to the termination of their employment were unlawful.* 2. The Respondents submitted that the Petition was filed 35 years from the time it became due and thus it is clearly an afterthought and an abuse of the court process. Further, there is no explanation for the delay apart from what was stated during trial that they were not able to file before the 2010 new constitutional dispensation. The Respondents argued that having filed the Petition in 2019, another 9 years after 2010, the delay is unreasonable and inexcusable. To buttress this point reliance was placed in the case of **Gilbert Guantai Mukindia vs The Attorney General (2019) eKLR** where P.O Otieno J held:- ***In this matter the delay between the date releases, October 1982, to 20th March 2014, when the petition was filed, spans some 32 years or thereabouts. The only explanation given by the petitioner is that while the retired president Moi was in power as the president it was impossible to file the petition. It is not made clear what made it impossible to file such a petition during the Moi presidency. It could have been of help to say the courts would not accept the petition or that the courts then would not accord much regard to such petition or just that the petitioner’s life would be in danger. That was purely the onus of the petitioner to disclose his difficulties but he opted to be less than candid on that aspect. While I would accept the reasoning by the courts in Harun Thungu Wakaba vs Attorney General Misc Appl. No. 1141 of 2004, Okwengu J, as well as Jennifer Muthoini’s case (supra) that the political atmosphere before 2002 was difficult for litigation for the enforcement of rights and freedoms, I however take notice that there was fundamental and determinant shift in those political conditions after the 2002 elections. Based on that appreciation and while I would accept the delay of another 12 years between 2002 and 2014. For the reason that no explanation was given at all the court is left with no option but to find that the petitioner slept on his rights. That slumber has justified the complaint by the respondent that it has been prejudiced in its defence in that it is unable to get any witness and documents which may be of help in its defence. That to me is the rationale for promptitude in litigation which parliament has sought to address by the various periods of limitation in various statutes including Limitation of Actions Act and Public Authorities Limitations Act. On that point I do find that this petition was brought after inordinately undue delay which delay has not been explained and failure is fatal to the petition. I would dismiss the petition on that score even at this early stage.*** 1. Similar reliance was placed in the case of **Nairobi Civil Appeal No. 268 of 2016 Wellington Nzioka Kioko vs The Attorney General (2018) eKLR** where the court cited the following passage by Majanja J in **James Kanyita Nderitu vs AG Petition No. 180 of 2011** with approval:- ***Although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under Section 84 of the Constitution, is entitled to consider whether there has been inordinate delay in lodging the claim. The court is obliged to consider whether justice will be served by permitting a respondent, whether an individual or the State in any of its manifestations, should be vexed by an otherwise state claim. Just as a petitioner is entitled to enforce its fundamental rights and freedoms, a respondent must have a reasonable expectation that such claims are prosecuted within reasonable time.*** 1. Further in **David Gitau Njau & 9 Others vs Attorney General** where Lenaola J (as he then was) held that there is no known law that provides limitation in constitutional petitions. However, there must be justification for the delay because such proceedings must be instituted as early as possible. 2. The respondents submitted that their witness Major Muta testified that he had not joined military service in 1982 and in as much as he was the records officer, he was not in possession of all the documents and neither was he an eye witness. He further testified that Courts Martial records are usually kept for a limited period of time of 7 years since court martial proceedings are considered public and therefore not classified. The respondents cited **Section 305A of the Kenya Defence Forces Act** which mandates the Chief of the Defence Forces to draft the Defence Forces Standing Orders (DEFSO) to oversee the general, special and routine management of the Defence Forces. **Chapter 2 of the DEFSO** at paragraph 73 provides the following guidelines for the preservation of military documents. **All documents in the Defence Forces shall be preserved and disposed off in the manner indicated below-** **Secret documents: to be reviewed declassified and same destroyed after 30 years** **Confidential documents: to be reviewed declassified and same destroyed after 10 years** **All others: to be reviewed and destroyed after 7 years except those required for future use.** 1. Further, the respondents argued that the Petitioners failed to provide facts and evidence in support of the inordinate delay in filing the petition 35 years after the occurrence. None of the Petitioners expounded on how the Moi’s regime affected their filing of the Petition within reasonable time. The respondents referred to the case of **Daniel Kibet Mutai & 9 Others vs Attorney General (2019) eKLR** at para 52 where the Court of Appeal held that the aspect of delay is interlinked with the right to fair trial as enshrined under Article 50 of the Constitution and therefore it is an abuse of the court process and contrary to Article 159 to allow a party alleging a violation of constitutional rights to file a claim after undue inordinate delay and without any justifiable reason. 2. By only relying on the aspect of transition to the Constitution of Kenya 2010 as the reason for delay, the respondents submitted that the petitioners chose not to interpret the constitution as a whole and without due regard to the balancing rights of both parties as was held by the court in **Centre for Rights Education and Awareness & another vs John Harun Mwau & 6 Others (2012) eKLR**:- ***…there are other important principles which apply to the construction of statutes which, in my view, also apply to the construction of a constitution such as presumption against absurdity-meaning that a court should avoid a construction that produces an absurd result; the presumption against unworkable or impracticable result-meaning that a court should find against a construction which produces unworkable or impracticable result; presumption against anomalous or illogical result- meaning that a court should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result and the presumption against artificial result and lastly the principle that the law should serve public interest- meaning that the court should avoid adopting a construction which is in any way adverse to public interest, economic, social and political or otherwise…*** 1. The Respondents further argued that Article 50 of the Constitution embodies the rules of natural justice which should be enjoyed by both parties without subjecting either to hardship while pursuing justice and particularly if the hardship is uncurable. In that aspect, the respondents argued that they are prejudiced as they were no eye witnesses to tender plausible evidence after 35 years past the occurrence, there was expected destruction and loss of relevant documents not to mention distortion or loss of memory of the service personnel who were serving during that period due to effluxion of time. Reliance was placed in the case of **Civil Appeal No. 268 of 2016 Wellington Nzioka Kioko vs The Attorney General (2018) eKLR** where the court held:- ***When a person suffers a wrong at the hands of another and feels the need to redress the wrong, it is reasonable to expect that the redress will be sought before the claim gets stale. This enables a person to preserve and adduce evidence that is necessary to support the claim. It also accords the purported wrong doer an opportunity to*** ***address the grievance and if possible remedy it. That way, both parties are spared the agony of losing important evidence, or even witnesses. Memory is at times transient and it is important that a person adduced evidence when the memory of the incident complained of is still intact…if a wrong is committed and then the person wronged waits for time on end before even notifying the other party, then a travesty of justice occurs because the claim may be made at a time when the offending party has forgotten about the incident and is no longer in a position to defend himself…*** 1. The Respondents asserted that due to the laches of over 35 years, they were highly prejudiced and denied the opportunity to vet the credibility of the Petitioners allegations. The petitioners are thus guilty of unconscionable delay and urge the court to dismiss the petition. Reliance was placed in the decision in **Nelson vs Raye (1996) 1 WLR 1378 (CH) 1388** where the court held that…..***Conscionability of the delay is determined by the period of the delay, the extent to which the defendant’s position has been prejudiced by the delay and the extent to which that prejudice was caused by the actions of the plaintiff.*** 2. On the second issue, the Respondents cited the case of **John Cheruiyot Rono vs The Attorney General Petition No. 536 of 2015** where the court observed that:- ***The burden of proving violation of a right or freedom enshrined in the Constitution rests on the person alleging the violation: see Matiba vs Attorney General (1990) KLR 666. Such burden is to be discharged on a balance of probabilities by the petitioner showing that the right existed and that it has been violated and the manner of such violation…..*** 1. With regard to torture, the Petitioner made wild and unsubstantiated claims that he was beaten and force to sleep in dark soggy or waterlogged cells. Both the retired Constitution as well as the Constitution 2010 sought and seek to ensure the protection of physical integrity of the individual. There was however no supportive evidence on this claim. The Respondents argued that the Petitioners did not tender any evidence that their rights were violated, they only made general statements without attaching any documents such as medical documents as evidence of torture contrary to **Section 107 of the Evidence Act**. 2. Although the Constitution does not define torture, **Article 1 of the United Nations Convention against Torture and other Cruel, Inhuman and Degrading treatment or punishment** defines torture as:- ***….any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purpose as obtaining from him or a third person, information or a confession punishing him for an act he or a third person, has committed or is suspected to having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind. When such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of public official or other person acting in an official capacity. It does not include pain or suffering arising only from inherent in or incidental to lawful sanctions.*** 1. The Respondents argued that the Petitioners failed to prove torture against them as defined. Further reliance was placed in the case of **Monica Wangu Wamwere vs Attorney General (2019) eKLR** where the court held:- **When a party alleges torture, the expectation of the law is that:** 1. **There must be evidence of severity and suffering.** 2. **There must be an intent in reckless indifference to the possibility of causing pain and suffering.** 3. **Acts that do not cause extreme pain and suffering to an ordinary person are normally outside the definition of torture.** 4. **The act of torture must involve a public official.** 5. Corresponding reliance was placed on **Robert Njeru vs Attorney General Petition No. 261 of 2014** where the court stated:- ***I agree with the reasoning of the learned judge (in Koigi Wamwere vs Attorney General (2012) as regards to torture generally in prison. I also take judicial notice of the fact that prisons conditions are not pleasant at all in the past and may still be especially as they related to diet, beddings and sanitation. I did not hear the petitioner to claim that harsh prison conditions were peculiar to him as compared to other inmates. I therefore do not find a violation of his protection to cruel, inhuman and degrading treatment while being held in prison.*** 1. On the issue of damages, the Respondents argued that the Petitioners did not prove the damages suffered in their claim to be awarded damages sort. To buttress this point reliance was placed in **Gitobu Imanyara & 2 Others vs The Attorney General (2016) eKLR** where the court relied on the case of **Romauld James vs AG (2010) UKPC Lord Kerr** at paragraph 13 where the court cited a passage from the judgment of Kangaloo JA who stated as follows:- ***In my view, it does not lie in the mouth of the appellant to say that he is not obliged to place evidence of damage suffered before the constitutional court before liability is determined. I say so because it must first be shown that there has been damage suffered as a result of the breach of the constitutional right before the court can exercise its discretion to award damages in the nature of compensatory damages to be assessed. If there is damage shown, the second stage of the award is not available as a mater of course. It is only if some damage has been shown that the court can exercise its discretion whether or not to award compensatory damages. The practice has developed in constitutional matters in this jurisdiction of having a separate hearing for assessment of damages, but it cannot be overemphasized that this is after evidence of the damage. In the instant case there is no evidence of damage suffered as a result of the breaches for which the appellant can be compensated.*** 1. The Respondents revealed that although the Petitioners cited cases that allegedly emanated from the 1982 attempted coup most of the cases have been appealed by the Attorney General with a favourable outcome. Furthermore, each case it to be determined on its own merits. Reliance was placed in the case of **Michael Rubia vs Attorney General (2020) eKLR** where the court held:- ***The deceased herein did not provide any evidence at all to support his case quantified in order to put him in the same position with Hon, Matiba. Whenever a party approaches the court for a remedy, he does so as an individual and his case will succeed or fail depending on the evidence he places before the court.*** ***I therefore agree with the respondent that the deceased failed to discharge the burden of proof. His claim for compensation on this head therefore fails.*** 1. The Respondents submitted that by virtue of the evidence they presented before the court including copies of charge sheets and the convening orders of the court martial trials which for of the Petitioners faced, the court martials were procedurally constituted and the awards of dismissal of service regular in compliance with **Section 103(4) of the Armed Forces Act** which provides that *….where a service man is sentenced by a court martial to imprisonment, he may in addition be sentenced to dismissal from the armed forces.* Thus the petitioners having been sentenced to imprisonment and subsequently dismissed from service, they were procedurally tried and convicted. Further, the military being a disciplined force, there is no notice period provided for termination of employment under the repealed Armed Forces Act or the current Kenya Defence Forces Act, thus instant dismissal from the service by a court martial is lawful. **Analysis and Determination** 1. Upon thorough review of the evidence and submissions of Counsel, this Court distils the following to be the issues for determination in this Petition: 2. ***Whether there was inordinate delay in filing the Petition.*** 3. ***Whether the Petitioners’ constitutional rights were violated by the Respondents*** 4. ***Whether the petitioners are entitled to the orders sought.*** **Whether there was inordinate delay in filing the petition.** 1. The equity maxim, the law aids the vigilant and not the indolent is a principle of universal application. It emphasizes that unexplained or unjustified delay in asserting a legal right can extinguish the legal remedy especially such delay is demonstrated to have materially prejudiced the opponent. For instance, in being unable to secure material witnesses who could be dead or no longer available due to passage of time, their memories may have faded and can no longer give meaningful testimonies, material documents may have been lost or not available. It is therefore the duty of the Court to examine the effect of the delay to ensure the interests of justice and fairness are not undermined. 2. The Court of Appeal in **James Kanyiita Nderitu v Attorney General & Director of Public Prosecution [2019] KECA 1006 (KLR)** considered a plethora of authorities in which delay in bringing constitutional claims featured and held as follows: ***“28. We have considered the appellant’s submission and the learned judge’s finding that there was inordinate delay in the filing of the petition. In this context, the learned judge invoked the principle of laches. Laches means the failure or neglect, for an unreasonable length of time, to do that which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time. (See Republic of Phillipines vs. Court of Appeals, G.R. No. 116111, January 21, 1999, 301 SCRA 366, 378-379).*** ***29. We are alive to the decision of this Court in Peter N. Kariuki vs. Attorney General [2014] eKLR, Civil Appeal No. 79 of 2012, where it was held that there is no time limit within which a party can file a claim for violation of constitutional rights. We have considered the persuasive dicta from the High Court in Kamlesh Mansuklal Damji Pattni & Another vs. Republic 2013] eKLR where it was noted that the Constitution did not set a time limit within which applications for enforcement of fundamental rights should be brought. Nevertheless, it is an accepted principle that a claimant who unreasonably delays his proceedings or otherwise misconducts himself regarding those proceedings may have his claim denied as an abuse of the court process. (See Metal Box Co Ltd vs. Currys Ltd, (1988) 1 All ER 341.*** ***30. We appreciate that in Kariuki Kiboi vs. Attorney General [2017] eKLR, Nairobi Civil Appeal No. 90 of 2015, this Court heard and determined a claim which arose in the mid-1980s and was lodged by a petition dated 26th August 2010. This Court stated:*** ***“Kariuki Kiboi (the appellant) was among six other persons who filed Constitutional petitions against the Attorney General (the respondent), who was sued on behalf of the Government of Kenya at the Constitutional and Human Rights Division of the High Court at Milimani Law Courts in Nairobi. The petitions were based on events that took place in this country in the mid-1980s and 90s, a period which some historians like to refer to as the dark days of the Moi era.*** ***The appellants were claiming in the main that some of their Constitutional rights, guaranteed them by the retired, and not so robust Constitution of Kenya, had been violated. It is not evident, why they did not sue earlier, but one can only surmise that they felt encouraged by the promulgation of the new Constitution on 27th August, 2010, which came with broader democratic space, an expanded Bill of rights, and a more vibrant and seemingly impartial judiciary.”*** ***31. In our view, subject to the limitations in Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions Act. However, each case is to be decided on its own merits and a caveat need to be stated as correctly observed in Johnstone Ogechi –v- The National Police Service [2017] eKLR, where the learned judge correctly expressed:*** ***“While making the above findings the court holds that clear statutory provisions that set time of limitation or impose clear conditions to be met before the court can grant specified remedies are substantive provisions that set boundaries for the jurisdiction of the court and their application is clearly within the provisions of Article 20(4) of the Constitution; whether the proceeding before the court is an ordinary action or a petition or other proceedings. In the opinion of the court, once the root of the right or freedom is established and the applicable statutory provisions are established to apply, moving the court by way of a constitutional petition will not suddenly render the statutory provisions inapplicable in so far as such provisions of time of limitation or conditions to granting a given remedy are interpreted to be promotional of the matters in Article 20(4) of the Constitution.”*** ***32. In Lt. Col. Peter Ngari Karume & Others vs. Attorney General, Nairobi Constitutional Application No. 128 of 2006 [2009] eKLR, Justice Nyamu aptly expressed:*** ***“The petitioners had all the time to file their claim under the ordinary law and the jurisdiction of the court but they never did and are now counting on the constitution. None of the petitioners has given any explanation as to the delay for 24 years. In my view, the petitioners are guilty of inordinate delay and in the absence of any explanation on the delay, this instant petition is a gross abuse of the court process…In view of the specified time limitation in other jurisdictions, the court is in a position to determine what a reasonable period would be for an applicant to file a constitutional application to enforce his or her violated fundamental rights. I do not wish to give a specific time frame, but in my mind, there can be no justification for the petitioner’s delay for 24 years….”*** ***33. In the instant matter, the appellant asserts that the delay of over 26 years was explained. We remind ourselves as was aptly stated in David Gitau Njau & 10 Others vs. the AG Petition No. 340 of 2012 that there is no limitation period imposed by the constitution in seeking redress for violation of fundamental rights and freedoms. In this matter, we have examined the record of appeal and more particularly the affidavit in support of the petition. We are unable to discern any specific paragraph which explains the delay in filing the petition. All the appellant submitted on this issue is rehashing the background facts from the date of his arrest to the date when the High Court quashed his conviction. In his written submission, it is urged that by the time the appellant was lodging the petition in 2011, it was shortly after the promulgation of the new 2010 Constitution that ushered in a new regime in the protection and enforcement of the Bill of Rights.*** ***34. Promulgation of the 2010 Constitution is not an act that extends or revives old causes of action. Promulgation neither founds a cause of action nor is it an absolute excuse for each and every delay in instituting proceedings for causes of action which arose and were known to exist. Delay in filing a petition or any cause of action must be explained independently of the promulgation of the 2010 Constitution.*** ***35. A constitutional petition, or for that matter judicial review proceedings, is not meant to circumvent the law on limitation of actions. Consequently, constitutional petitions filed in delay alleging violation of the Bill of Rights is to be considered on a case-by-case basis taking into account the explanation and merits of delay…”*** 1. In **Hezron Ndarera Onchiri v Attorney General [2020] KEHC 9453 (KLR), the Court,** the Court rejecting a claim that was filed 5 years post 2010 on account of delay stated as follows: ***“14. Even assuming that the explanation offered in the submissions was to be accepted by the court, I would still find the explanation unconvincing. As correctly submitted by the Respondent, the late President Moi left power in 2003 and this petition was filed thirteen years later. The democratic space was greatly expanded after the promulgation of the 2010 Constitution. The Petitioner did not explain why it took him over five years from 2010 to file his petition…. An unexplained delay in filing a constitutional petition can be a ground for the dismissal of the petition. A plethora of authorities speak to that point. Apart from the authorities cited by the Respondent, other decisions on the issue are Lt. Col. Peter Ngari Kagume & 7 others v Attorney General [2009] eKLR; Kanyitta Nderitu v Attorney General & another [2013] eKLR; Joseph Migere Onoo v Attorney General [2015] eKLR; and Nairobi High Court Petition No. 16 of 2018 Alphonse Kipkemoi Somongi v The Hon. Attorney General.*** ***17. In the circumstances of this case, I find myself in agreement with the Respondent that there has been unexplained inordinate delay in this matter thereby denying the Respondent an opportunity to put up a plausible defence. For that reason alone the petition should be dismissed.”*** 1. In **Eliud Wefwafwa Luucho & 3 others v Attorney General [2017] KEHC 3511 (KLR)**, the Court held: ***“29. My understanding of the jurisprudence on the issue of limitation is that courts will be reluctant to shut out a litigant on account of limitation of time unless there are obvious reasons to do so. In considering such delays, the court cannot avoid taking judicial notice of the immense difficulties which prevailed at the period of the alleged violations making it impossible for aggrieved persons to file cases of this nature against the government. In fact it is the promulgation of the constitution of Kenya 2010 that opened the doors of justice thereby making it possible for aggrieved persons to institute cases of this nature.”*** 1. In a nutshell, the Respondents contended that the delay of 35 years that it took the Petitioners to institute the Petition is inexcusable and highly prejudicial to the Respondents yet the Petitioners did not provide any tangible reason for the delay because even after the current Constitution that opened up the civil space, it took the Petitioners another nine (9) years yet they also do not account for this inertia. Speaking of the prejudice, the Respondent submitted that under Section 306 A of the Kenya Defence Act, the Chief of Defence Forces is empowered to issue Defence Forces Standing Orders (DEFSO), and under Chapter 2 of the DEFSO, paragraph 73, the preservation and disposal of military documents is provided for, whereby, secret documents are reviewed, classified and destroyed after 30 years, confidential documents after 10 years and all other documents after 7 years. 2. The Respondent thus contended that due to the prolonged delay, the relevant documents they would have relied on are no longer available, further, it was not possible to find the military personnel who would be able to give direct testimonies due to the passage of time hence their defence of the matter was highly prejudiced. 3. The Petitioners in the instant Petition only attached letters in which they stated that they filed the petition late because the people who were torturing them threatened them with death. However, this claim in my view would not stand especially because even after the democratic gains around 2003 that altered the political dimensions. ThisCourt takes judicial notice that retired President Moi’s regime ended around 2002. Further in 2008, a commission known as Truth Justice and Reconciliation Commission was set up with a wide- ranging mandate that not only included the investigation of 2007 election violence but also all incidents of violation of human rights abuses including torture at the infamous Nyayo House torture chambers. Furthermore, even after the new Constitution in 2010 was promulgated, the Petitioners took a whooping nine (9) years before filing the Petition yet no explanation is given by the Petitioners for this inertia**.** In any case, thePetitioners claim that they were afraid of taking court action for fear of reprisals from their tormentors which fact is rebutted by the fact as early as 1984, one of them filed an appeal against the decision of the court martial in the **High Court Kenya vide Criminal Appeal No. 175 of 1984.** 4. The Respondents have ably demonstrated the prejudice. The documents they would have referenced and relied have long been destroyed or unavailable and finding witnesses, after nearly 35 years who can to attest to the facts in question directly has not been possible. Proceeding with this Petition will thus not advance fairness and in the interest of justice. 5. I find that there was inordinate and inexcusable delay on the part of the Petitioners in instituting the Petition. 6. Consequently, the Petition is hereby dismissed. I shall not make any orders as to costs. ***Dated, signed and delivered virtually at Nairobi this 23RD day of July, 2026.*** ***……………………………………..*** ***L N MUGAMBI*** ***JUDGE***