[2013] KEHC 6750 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.497 OF 2012

BETWEEN

CAPTAIN (RTD) FRANK MBUGUA MUNUKU...........…...…PETITIONER

AND

THE KENYA DEFENCE FORCES……..........................1ST RESPONDENT

THE HON. ATTORNEY GENERAL..............................2ND RESPONDENT

JUDGMENT

The Petitioner herein was enlisted as a cadet officer with the then Kenya Armed Forces in April 1975 and was commissioned as a 2nd Lieutenant in December of the same year. He was promoted to the rank of Captain in March 1979 but three years later, his professional career took a turn for the worse. His complaints are now as follows;

That at the time of the aborted coup d'etat against the Government of Kenya by some Kenya Air force officers on 1st August 1982, he was on duty at Wajir Air Base and the following day, he was disarmed and heavily interrogated on his knowledge of the attempted coup. Thereafter, he was arrested and locked up for 3 days at Wajir Police Station before being airlifted to Nairobi. For the three days that he was in confinement, he was kept in a dark cell and was not given any food.

That on arrival in Nairobi, together with others, he was driven to Naivasha Maximum Security Prison where he was again locked up in solitary confinement and interrogated for three weeks. Although after that period an indication was given that he had been found innocent of allegations that he may have participated in the attempted coup, his unlawful confinement continued on for two more two months at Naivasha before he was transferred together with others to Kamiti Maximum Security Prison where he was held in a crowded cell, fed with poorly prepared food and without proper sanitation facilities and adequate medical attention. That as a result, he succumbed to various illnesses including diarrhoea and was also denied access to his family and a lawyer. He was thereafter released without charge on 9th March 1983, handed a letter of termination of services and paid one month's salary and no explanation was given for that drastic action.

It is his case therefore that;

i) by being arrested illegally and held incommunicado for two (2) months and unlawfully detained for eight (8) months, his right to liberty under Article 29 of the Constitution and Articles 3 and 9 of the Universal Declaration of Human Rights were violated.

ii) that failure to charge him in a Court of law was a violation of the right to the protection of the law and freedom from cruel,inhuman and degrading treatment contrary to Sections 70 and74 of Repealed Constitution, (now Articles 27(1), (2), 28, 29(a) (d) and (f) of the Constitution, 2010) as well as Article 5 of the Universal Declaration of Human Rights.

iii) that at the time of his arrest, his personal properties at Wajir including a valuable camera and music system were taken away never to be returned. Further, his family was forcefully evicted from their living quarters and denied his company and this was a violation of his right to privacy under Article 31 of the Constitution.

iv) that he was denied fair administrative action contrary to Article 47 of the Constitution and denied the rights enshrined in Articles 49 and 50 of the Constitution (rights of arrested and accused persons including fair trial).

v) that his right to earn an honest living was curtailed and due process of the law was not followed when he was unlawfully detained contrary to the Constitution and the Preservation of Public Security Act and its Regulations.

For all the above reasons, the Petitioner now seeks the following reliefs;

“a) A Declaration that the cruel, inhuman and degrading treatment subjected on the Petitioner upon his arrest and being taken into police custody and subsequent detention in the various prisons constituted serious breaches of the Petitioner's fundamental rights and freedoms as to liberty,humane treatment, and freedom against arbitrary interference with his privacy, family and home, and right toearn an honest living as guaranteed under the Repealed Constitution and the Constitution of Kenya, 2010.

b) A Declaration that the detention of the Petitioner for eight (8) months with two months under solitary confinement (incommunicado) without arraigning or charging him in Court with any offence known under the law violated the Petitioner's right of personal liberty under Section 72 of the Repealed Constitution and was illegal and a violation of thePetitioner's fundamental right to equal protection of the law under Section 70(a) of the Repealed Constitution (now Articles 27(1)&(2) of the Constitution of Kenya, 2010) and further grossly violated the Petitioner's right to a fair administrative action as provided for under Article 47 of the Constitution.

c) General Damages consequential to the Declarations of violations of the Petitioner's Fundamental Rights and Freedoms.

d) Aggravated, Punitive and/or Exemplary Damages for the irrational, arbitrary, oppressive and unlawful acts of the Respondents and for failing to uphold and respect the Petitioner's Fundamental Rights and Freedoms as enshrined in the Constitution of Kenya.

e) General Damages for Wrongful Dismissal and/or Unlawful termination of the Petitioner's commission/employment.

f) Costs of this Petition.

g) Interest on all monetary awards.

h) Any other or further relief this Honourable Court deems fit and just to grant.”

It now appears normal that the Respondent in this kind of case never files any response to the serious allegations made against the Government by Petitioners and the same is the true in the present Petition. I note however that an attorney from the Respondent's office appeared, asked a few questions in cross-examination of the Petitioner but nothing turns on the answers extracted from him. No submissions were thereafter filed as ordered and so this Court has only the Affidavit in support of the Petition, the evidence tendered orally by the Petitioner and his advocate's written Submissions and authorities in support of his case as the basis for this judgment.

The above being the position as regards the facts before me, I have no choice but to believe them as tendered and I say so and in agreement with the decision in Rev. Lawford Ndege Imunde vs. Republic, J.R. Petition No.693 of 2008 where the learned judge stated as follows;

“The facts of this case are set out in the Petition and Affidavit in support of the Petition. These facts are not controverted by the Respondent. The effect of this is that I must take the facts set out as true and correct so that the only task before me is to consider whether they constitute a violation of the Petitioner's rights and if so what relief I should grant.”

I adopt the above words wholly and with the facts as outlined above, has the Petitioner made out a case for a finding that his fundamental rights and freedoms have been violated?

It is instructive that for eight (8) months, the Petitioner was held against his will at Naivasha and Kamiti Maximum Prisons. He was subjected to physical and mental trauma without ever being taken to any Court of law. I have seen no evidence for example that he appeared before any Court Martial if he had committed an offence triable by that Court.

In that regard,Section 72of the Repealed Constitution obligated any person who lawfully arrests another one to ensure that;

i) the person is informed, promptly, of the reasons for his arrest or detention and

ii) that he is brought before a Court as “soon as is reasonably practicable” and that this should be done within twenty-four hours in all cases save where the punishment may be death, in which case, he must be brought to Court within twenty-four hours.

In the instant case, it is obvious that the provisions of Section 72 were all breached and similarly and more fundamentally, the Petitioner was held incommunicado and in solitary confinement and this was in breach of Sections 70and 74of theRepealed Constitution which protected his rights to liberty, security of the person and the protection of the law, freedom from conscience, of expression and association and where his personal and household effects were confiscated, the protection for the privacy of his home and other property and the freedom from inhuman and degrading treatment.

If that be the case, it is my finding that his rights under the Repealed Constitution were violated and for avoidance of doubt all those rights and freedoms are now enshrined in the Constitution 2010 in Articles 28, 29, 32, 33,37, 40, 49 and 50 and are properly enforceable under Articles 22 and 23 of the said Constitution. The Respondent has not raised nor addressed the issue of retroactivity of these provisions and their applicability to the Petitioner's situation but even if he had, I would have comfortably ruled against him.

The next question to address is whether the Petitioner is entitled to compensation for his suffering and the answer lies in Article 23 of the Constitution 2010 which was in similar tenor to Section 84 of the Repealed Constitution which grants such a right.

As to quantum of Damages, in Submissions, the advocate for the Petitioner casually addressed the issue, cited no authorities in support of his client's claim and so I will address the issue in the context of previous decisions of this Court on the same subject. In doing so, I will also be guided by the following factors;

i) the length and period of the unlawful detention.

ii) the violations and breaches of fundamental rights and freedoms involved.

But before getting there, I will first dispose of two matters raised in the Petition i.e. the claim for exemplary, aggravated and punitive damages and the issue of unlawful termination of the Petitioner's Commission/employment.

On the first issue, this Court has previously held and reiterates the position that punitive or exemplary damages should not issue in changed political circumstances. The events complained of happened in unique circumstances and in a different political climate. This and other Courts have consistently held in the recent past that the present Government has been held to account for the excesses of previous regimes and so far as I can see, there is no evidence that the atrocities of the past are being repeated. In the event, I am not prepared to grant the Petitioner's prayers in that regard and I say so well aware that in Arony vs. Attorney-General H.C. Misc. Appl. No.494/2003 in a judgment delivered soon after the transition from the Moi to the Kibaki regime, the bench (and I sat in it) sent a strong message to the Executive on that issue and actually awarded damages of an exemplary nature. I am convinced that at this time and age, it would be grossly unfair to the Government to award damages of this kind.

On the termination of the Petitioner's employment, I have agonised over the issue but I am convinced that in the nature of the Petition before me, it would be improper for me to delve into the question because issues of jurisdiction have not been addressed nor has sufficient evidence been placed before me to enable me make a fair determination thereof if jurisdiction does exist. The Petitioner has also raised the issue many years after the fact and limitation of time in such a case must be viewed quite differently from limitation in a claim for violation of fundamental rights. The Petitioner may consider pursuing this claim in different proceedingss.

Lastly, I have read previous decisions of this Court principally Arony (supra), Jenniffer Muthoni Njoroge & 10 Others, Petition No.340 of 2009 and Gitobu Imanyara vs The Attorney-General, Petition No.78 of 2010 consolidated with Petitions Nos. 80 & 81 of 2010and I deem it appropriate to grant the Petitioner the global sum of Kshs.7 Million as general damages for violation of his fundamental rights and freedoms. I have also done so taking into account the criteria I set out at paragraph 14 of this judgment.

In a nutshell, judgment is hereby entered in favour of the Petitioner against the Respondent in the following terms;

a) A Declaration that the cruel, inhuman and degrading treatment subjected on the Petitioner upon his arrest and being taken into police custody and subsequent detention in the various prisons constituted serious breaches of the Petitioner's fundamental rights and Freedoms as to liberty, humane treatment, and freedom against arbitrary interference with his privacy, family and home, and right to earn an honest living as guaranteed under the Repealed Constitution and Constitution of Kenya, 2010.

b) A Declaration that the detention of the Petitioner for eight (8) months with two months under solitary confinement (incommunicado) without arraigning or charging him in Court with any offence known under the law violated the Petitioner's right of personal liberty under Section 72 of the Repealed Constitution and was illegal and a violation of the Petitioner's fundamental right to equal protection of the law under Section 70(a) of the Repealed Constitution (now Articles 27(1)&(2) of the Constitution of Kenya, 2010) and further grossly violated the Petitioner's right to a fair administrative action as provided for under Article 47 of the Constitution.

c) General Damages of Kshs. 5 Million consequential to the Declarations of violations of the Petitioner's Fundamental Rights and Freedoms.

d) costs of this Petition.

e) Interest at Court rates on (c) and (d) above.

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Irene – Court clerk

Mr. Amolo holding brief for Mr. Gikaria for Petitioner

No appearance for Respondent

Order

Judgment duly delivered.

ISAAC LENAOLA

JUDGE