[2017] KEHC 2080 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

HUMAN RIGHTS & CONSTITUTIONAL DIVISION

PETITION NO. 575 OF 2015

BETWEEN

ANN WAIRIMU NJAHIRA................................................PETITIONER

AND

THE NAIROBI CITY COUNTY GOVERNMENT.....1ST RESPONDENT

ALFRED MARENYA OGESI Alias BROWN.........2ND RESPONDENT

PROTUS SARARA.................................................3RD RESPONDENT

AMBANI AKASI Alias WASIWASI.......................4TH RESPONDENT

JULIUS ACHIENG.................................................5TH RESPONDENT

JUDGMENT

Introduction

1. The Petitioner, Ann Wairimu Njahira has brought these proceedings on her own behalf and that of her husband Irungu Kamau (deceased), against the 1st Respondent, the Nairobi City County Government for alleged acts committed by its employees, the 2nd-5th Respondents.

2. The Petitioner alleges that on or about 16 September 2013 while walking to attend a funeral committee for one of their colleagues encountered the 2nd-5th Respondents, the 1st Respondents’ ‘Askaris’. Upon seeing the Askaris, the Petitioner and the deceased ran for their safety to avoid a commotion. However, the 2nd- 5th Respondents pursued the deceased and inflicted serious injuries on him. On being taken to hospital, the Petitioner’s husband succumbed to the injuries.

3. The Petitioner alleges that the Respondents’ acts have violated hers and the deceased fundamental rights and freedoms, and in particular the rights contained under Articles 25 (a), 26, 28, 29 (c), (d) & (f) of the Constitution.

4. In the circumstances, the Petitioner seeks for orders that:

(a) A declaration that the heavy beating, wounding and causing death of the deceased was in violation of the deceased’s Fundamental Rights and Freedoms contrary to Articles 25(a), 28, 29 (c), (d) & (f), of the Constitution of Kenya.

(b) A declaration that the heavy beating, wounding and causing death of the petitioner’s husband was in violation of the deceased’s Fundamental Right to life contrary to Articles 26 of the Constitution of Kenya.

(c) A declaration that subjecting the petitioner to severe mental trauma, distress and anguish due to the circumstances leading to the death of her husband was in violation of the petitioner’s Fundamental Rights and Freedoms contrary to Articles 25 (a), 28, 29 (c), (d) & (f), of the Constitution of Kenya.

(d) An order of compensation in general and special damages.

(e) Aggravated damages.

(f) Costs of the petition and interests on (e) above.

Petitioner’s case

5. The Petitioner’s case is contained in the Petition dated 18 December 2015 and the affidavits deposed in support thereof by the Petitioner dated 18 December 2015 and Edward Kiboi of even date. At the hearing of the Petition, the Petitioner testified as PW1.

6. It is the Petitioner’s case and evidence that on or about 16 September 2013, she was heading to a funeral committee at about 6pm with her late husband when they came across the 1st Respondent’s enforcement officers. As it was the norm, they started running away seeking hiding places. The petitioner states that whereas she hid, her husband sought refuge at the Nyam Hotel where he was arrested by the 2nd-5th Respondents, heavily beaten sustaining stab wounds to his head. He was taken to Kiambu Hospital where he unfortunately succumbed to his injuries the following day whilst undergoing treatment. In her evidence, PW1 produced the death certificate which was marked as Petitioner’s Exhibit No. 1. The death of the PW1’s husband, it was testified was reported at Kamukunji Police Station.

7. The Petitioner contends that she has had to endure pain and suffering as well as trauma as a result of her husband’s death and has had to undergo psychiatric treatment. Further, that her children have been affected as a result thereof.

8. On cross-examination, it was PW1’s testimony that she wrote a statement with the police at the Kamukunji Police Station and even had an Occurrence Book Number. However, she gave the documents to the police and never kept the copies.

9. Dr. Peter M. Ndegwa, working with the Ministry of Health in the department of diagnostic and Forensic services as a pathologist department testified as PW2. It was his evidence that the deceased’s cause of death was bleeding due to blunt force trauma consistent with assault. In this regard, the Autopsy Report dated 13 October 2013 was produced as an exhibit.

10. Edward Kiboi who works as a hawker in River Road, Nairobi testified as PW3. Like PW1, it was his evidence that on the aforesaid day, he was on his way to attend a funeral committee with PW1 and the deceased when they met the 2nd- 5th Respondents. It was PW3’s evidence that the aforesaid Respondents on seeing them, started chasing them. He hid. The deceased on the other was chased and got into Nyam Hotel where the 2nd-5th Respondents followed him and dragged him out.

11. PW3 testified that he saw one of the Respondents cut the deceased with a panga, while the others stabbed him with knives and broken bottles. He was also hit on the head. It was PW3’s testimony that he ran to the venue of the funeral committee to inform them of what had happened. The next day, he learnt that PW1’s husband had passed on. According to PW3, the case of PW1’s husband’s death was reported at Kamukunji Police Station.

12. In his evidence, PW3 stated that the 2nd- 5th Respondents were people known to him. On the material day, they were wearing their civilian clothes. Further, that they were charged with murder in Milimani High Court Criminal Case No. 3 of 2016. It was PW3’s evidence that the death of PW1’s husband has caused suffering to his wife and family.

13. On cross-examination, it was PW3’s testimony that the Askaris always wear uniform, but on the material day, they did not. It was also testified that they were not able to help the deceased as the 2nd-5th Respondents were being protected by Police Officers. PW3 stated that he went to report the incident at the Kamukunji Police Station; however, he was neither given an Occurrence Book (OB) Number nor any documents. The delay in filing the matter in court, it was testified was occasioned by being told that the file at the Police Station was lost.

14. It was submitted that, the 2nd- 5th Respondents as law enforcement officers of the 1st Respondent were involved in the brutal murder of the Irungu Kamau, the deceased. This, it was submitted was in violation of Article 26 of the Constitution which provides for the right to life. It was the Petitioner’s submission that Article 29 (c) of the Constitution provides for the right not to be subjected to any form of violence either from public or private sources. Further, that Article 29 (d) provides for the right not to be subjected to torture in any manner, whether physical or psychological.

15. With regard to the appropriate remedy, it was submitted that monetary compensation is a fair and reasonable remedy for violation of fundamental rights. On this, the Petitioner sought to rely on the case of Herman Marine Nderi vs. Attorney General (2012) e KLR. With regards general damages, the Petitioner relied on the case of James Omwenga Achira vs. Attorney General (2012) e KLR, where the court held that a party whose constitutional rights are found to have been violated by the State is entitled to general damages. The Petitioner also sought for aggravated damages. In sum, it was the Petitioner’s submission that a sum of Kshs. 15,000,000 would suffice. In this regard, she sought to rely on the case of Koigi Wamwere vs. Attorney General [2015] e KLR where the Court of Appeal awarded a global sum of Kshs. 12,000,000.

16. The Petitioner abandoned its claim on special damages.

Respondents’ case

17. The Respondents’ case is set out in the Respondents’ Statement of Defence dated 9 February 2016 and filed on 11 February 2016.

18. In opposing the Petition, the Respondents contend that on the material day, the 2nd- 5th Respondents were not on duty at the Nyamakima area. In fact, the 1st Respondent being a government institution operates on working hours between 8a.m. and 5p.m. and thus, the 2nd- 5th Respondents could not be on duty when the alleged incident took place. It is the Respondents’ case that, during working hours, the 1st Respondent staff is issued with uniforms and working overalls which they wore while on duty.

19. It is the Respondents case that there is no nexus between the injuries sustained by the deceased and the 2nd-5th Respondents. Further that none of the witnesses can physically place the 2nd-5th Respondents at the place where the assault took place. In any event, the Petitioner failed to produce a Police Abstract with regard to the OB number showing that they had indeed reported the crime as alleged by the Petitioner.

20. The Respondents contend that the Petitioner has not attached any medical records to support the alleged beatings. Neither does the Autopsy Report make any reference to the alleged beatings and assault.

21. With regard to the infringement of fundamental rights and freedoms as enshrined in the constitution, it was the Respondents’ submission that the Petition does not meet the threshold of constitutional matters as no fundamental rights owed to the Petitioner have been violated by the Respondents. It was further submitted that the allegation of infringement of the deceased’s constitutional rights have not been proven as there is no evidence putting the 2nd -5th Respondents at the scene of the crime.

Discussion and Determination

20. The Petitioner’s claim revolves around the right to life and the freedom from torture. It is alleged that the 1st Respondents servants and or agents took away the life of the Petitioner’s spouse without cause after an unnecessary beating in the cause of an attempted arrest.

21. Like in most international convention to which Kenya has ascribed and is party to, the Constitution under Article 26 guarantees every person the right to life. It is an innate right. It is an unqualified right and commences at conception until death. Only the Constitution or statute law may limit it. In effect the right to life exists in every person regardless of their action. Even criminals until and unless convicted of offences which fetch the mandatory death sentence have the right to life vested in them.

22. The right to life, in my judgment, essentially means that a person is entitled not to be killed. The right to life is a moral principle based on the belief that a human being has the right to live and, in particular, should not be killed by another human being, and this includes a prohibition against killing whist making an arrest The arresting entity it is to be remembered has only to use the necessary force commensurate with any resistance to help achieve the objective of an arrest which is to bring the arrested person to justice. Death is not and cannot be justice unless meted upon conviction. Additionally, the State and all State organs are enjoined to protect this right for the basic reason that the State and State organs have an obligation to “observe, respect, protect, promote and fulfill” the rights in the Bill of Rights : see Article 21 of the Constitution.

23. In the instant case, the petitioner has led evidence of how the 1st Respondent’s security officers transgressed by beating up the Petitioner’s now deceased spouse. It was supposed to be a routine arrest of hawkers on the city streets but as often happened the 1st Respondent’s officers locally known as ‘askaris’ and who included the 2nd to 5th Respondents, reveled at hounding and beating up the deceased and other hawkers.

24. There was clear evidence of the Petitioner that the deceased was physically beaten up by the askaris, not to with a view to coercing or intimidating the deceased but in an attempt to arrest him. PW3 also confirmed having witnessed the askaris chasing and beating up the deceased, only to leave him behind injured. According to the Petitioner as well as PW3 the askaris who included the 2nd through the 4th Respondents were well known to the hawkers and routinely they would chase and brutally beat up the hawkers who included the deceased as their leader. Often, the hawkers would escape with injuries but in the instant case everything turned tragic. PW2 confirmed the cause of death as “ internal bleeding due to blunt force trauma consistent with assault”. It was absolutely unnecessary to use any force on unarmed citizens.

25. The Petitioner in my view has proven her case. I am satisfied that it was the 1st Respondent’s askaris, with the 1st Respondent being a vicarious entity, who caused the death of the Petitioner’s spouse. The testimony of PW1 and PW3 were consistent enough. They knew and were familiar with the 2nd to the 5th Respondents who were also askaris. They placed them at the scene on the material day. The askaris were possibly the only ones to cause harm to the Petitioner’s deceased spouse on the material day. The 1st Respondent’s askaris unlawfully caused the death of the Petitioner’s spouse while seeking to arrest the Petitioner’s spouse. The right to life was violated. It has not been suggested that the deceased was a threat to the askaris. I hold the askaris responsible. The hounding around and the beatings were uncalled for but appeared a routine process as the askaris continued to engage the hawkers in running street hide and seek games.

26. The tragedy is however that the life of the Petitioner’s deceased spouse may never be regained and all due to the arbitrary acts of the Respondents.

27. The Petitioner has asked for damages. I am conscious of the fact that no amount of damages may rewind the clock. I must nonetheless exercise my discretion and posthumously award damages for such violation of the right to life.

28. The Petitioner has asked for an aggregate amount of Kshs 15,000,000= constituting general special and aggravated damages for violation of the right to life and torture. However, in my judgment, only a violation of the right to life has been proven.

29. Accepting the value judgment that I have to exercise and further considering that no amount of damages is likely to put the Petitioner is the same position as if no violation ever occurred and considering further that the violation happened in the course of exercising a legal duty and further guided by the case of Kenya National Commission on Human Rights & Another vThe Attorney General, I would assess the damages to the Petitioner for the violation to the right to life of the Petitioner’s now deceased husband at Kshs 4,000,000/= together with interest at court rates from the date of judgment.

30. By way of disposal, I make the following orders:

a. An order of declaration that the right to life of Irungu Kamau (now deceased) as protected under Article 26(1) of the Constitution was violated by the Respondents.

b. The Respondents are to pay the Petitioner by way of damages the amount of Kshs 4,000,000/=.

c. The Respondents shall pay the Petitioner the costs of the Petition to be taxed if not agreed.

Dated, signed and delivered at Nairobi this 14th day of November, 2017.

J.L.ONGUTO

JUDGE