Gatari & 5 others v Chief of the Kenya Defence Forces & another

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL & HUMAN RIGHTS DIVISION** **PETITION NO. E555 OF 2022** **IN THE MATTER OF ARTICLES 19, 20, 21(1), 23(1) & (3) AND 165(3)(a), (b), (d)(i), (ii), (6), (7) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27(1), (2), 28, 29(a), (d) & (f), 49(1)(f) & 50(2) OF THE CONSTITUTION OF KENYA (EQUIVALENT SECTIONS 70(a), 72(3), 74(1) & 77 OF THE FORMER CONSTITUTION** **AND** **IN THE MATTER OF THE REPEALED ARMED FORCES ACT (CHAPTER 199 LAWS OF KENYA)** **BETWEEN** **MICHAEL JAMES GATARI……………..………………1ST PETITIONER** **SAMSON KIPKENEI KEBENEY……………………….2ND PETITIONER** **DOUGLAS MACHARI RUIRU……………..………….3RD PETITIONER** **NELSON KIPROTICH CHEPSIROR…….…………….4TH PETITIONER** **JOHN NYAGA KAIBIRU………………………………..5TH PETITIONER** **NICHOLAS NJAU NDIRITU…………………..…….…6TH PETITIONER** ***VERSUS*** **THE CHIEF OF THE KENYA** **DEFENCE FORCES………………………………….….1ST RESPONDENT** **THE HON. ATTORNEY GENERAL………....………2ND RESPONDENT** **JUDGMENT** **Brief Facts** 1. The petition dated 7th November 2022 is supported by the petitioners’ affidavits of even date and Further Affidavits dated 26th June 2023, 19th June 2023 and 10th July 2023. 2. The petition is founded on the alleged brutal and unlawful arrest, torture and being kept incommunicado in prolonged detention and released without being charged or court martialled in violation of petitioner’s rights under sections 70(a), 72(1), (3), 74(1) & 77 of the retired Constitution, the equivalent to Articles 27(1), (2), 28, 29(a), (d), (f), 49(1)(f) & 50(2) of the current Constitution. 3. The petitioners therefore seek the following reliefs:- 4. **A declaration that the brutal arrest, and the violence, cruel brutalities, extreme inhuman and degrading conditions that the Petitioners were subjected to in the various military, police and prisons’ custody in a bid to extort confessions from them were in breach of the fundamental rights and freedoms of the Petitioners to human dignity, protection of the law, freedom from torture, cruel, inhuman and/or degrading treatment or punishment guaranteed by sections 70(a) and 74(1) of the former Constitution (now Articles 27(1), (2), 28 and 29(a),(c),(d),(f) of the Constitution of Kenya, 2010).** 5. **A declaration that the more than 7 months that the Petitioners were detained incommunicado in military, police and prisons’ custody without trial was arbitrary, unlawful, illegal and unconstitutional and a violation of the fundamental rights of the Petitioners to human dignity, protection of law, personal liberty and freedom from cruel, inhuman and degrading treatment and/or punishment guaranteed by sections 70(a), 72(3) and 74(1) of the former Constitution (now Articles 27(1), (2), (28, 29 (a)) and 49(1)(f) and 50(2) of the Constitution of Kenya, 2010.)** 6. **A declaration that the arbitrary and unlawful termination of the Petitioners’ service from the armed forces without a hearing and without any benefits was unlawful, inhuman and cruel deprivation of the Petitioners’ means of livelihoods in violation of their fundamental rights to human dignity, to life and freedom from cruel and inhuman treatment and/or punishment contrary to sections 70 (a),71 (1), and 74 (1) of the former Constitution (now Articles 26 (1) and (3), 28 and 29 (f) of the Constitution of Kenya, 2010.)** 7. **General and exemplary damages consequential upon the declarations of violations of fundamental rights and freedoms of the Petitioners in prayers (i) to (iii) above as may be assessed by this Honourable Court.** 8. **Costs of the Petition.** 9. **Interest on damages and costs in prayers (iv) and (v) above.** 10. In opposition to the petition, the respondents filed a replying affidavit dated 17th December 2024. 11. The matter proceeded via *viva voce* evidence. **The Petitioners’ Case** 1. The petitioners were serving officers of the Kenya Air Force (“KAF”) in various technical fields at the time of the 1st August 1982 attempted military coup. The 1st, 2nd, 3rd, 4th and 6th petitioners were arrested from various bases of the KAF by officers of the Kenya Army and the Kenya Navy on 1st August 1982 while the 5th petitioner was arrested by police officers at a police station in his rural home in Tharaka Nithi County and handed over to officers of the Kenya Army. All the petitioners were arrested on suspicion of plotting or participating in the attempted coup. 2. The petitioners state that, during and following their arrest, they were stripped naked, beaten, forced to walk on their knees, whipped, kicked and bludgeoned and thereafter detained incommunicado in various military, police and prison facilities. They further state that while in custody they were subjected to harsh and degrading conditions, including solitary confinement, detention in waterlogged or overcrowded cells, deprivation of food and water, lack of sanitation and medical attention, physical assaults and coercive interrogation intended to procure confessions concerning the attempted coup. 3. The petitioners contend that they were held in pre-trial or pre-arraignment detention for periods exceeding seven months. They state that *some were ultimately released without charge while others went through Court Martial proceedings*. They further contend that they were dismissed from the Armed Forces on the basis that their services were no longer required, without being afforded a hearing and without being paid terminal benefits. 4. The petition was filed approximately forty years after the events complained of. The petitioners attribute the delay principally to fear of the Government of the late President Daniel arap Moi, their apprehension concerning the independence of State institutions, whilst the promulgation of the Constitution of Kenya, 2010, the subsequent demise of President Moi in 2020 and the recommendations of the Truth, Justice and Reconciliation Commission (“TJRC”), increased their confidence to pursue redress. They further contend that that judgments previously obtained by former KAF officers in similar constitutional petitions have remained unsettled and that successive governments of the late President Mwai Kibaki and former President Uhuru Kenyatta, had demonstrated no intention of according justice to former KAF officers who suffered torture and unlawful detention following the failed coup. They contended that the respondents are therefore estopped from relying on delay to contest their claim when they have not satisfied any judgment of those who sued before them. 5. The petitioners also state that there being no time limitation for vindication of fundamental rights and freedoms, and in the context of transitional justice the honourable Court should determine their claims on their merits. 6. **PW1, Michael James Gatari**, testified on 5/10/2023. He relied on the affidavit dated 7th November 2022 and further affidavit dated 26th June 2023 and testified that he was enlisted into the KAF as a Cadet Officer on 2nd July 1974 and was a Captain and Officer-in-Charge of Aircraft Ground Equipment at Nanyuki KAF Base at the time of the attempted coup. He produced in evidence his service record as P. exhibit 1. 7. He further stated that in the afternoon of 1st August 1982, Kenya Army soldiers from the neighboring Nanyuki Barracks entered his Nanyuki Air Base, ordered all KAF officers to surrender, disarmed them, stripped them naked, beat them severely using kicks, fists, slaps and other weapons and locked them in the Supplies Block where they were vetted of what they knew of the coup. Thereafter, he was subsequently held at Nyeri G.K. Prison also known as King’ong’o prison, Kamiti and Naivasha prisons all the while being semi-naked and being beaten by escorting military officers. 8. PW1 narrated that he remained detained in the said prisons completely *incommunicado*, frequently being beaten up by prison warders, police and army officers, held in solitary confinement under inhuman conditions, including in a waterlogged cell without any lighting, denied food, water, bedding, toilet facilities and interrogated regarding alleged involvement in planning the failed coup as the officers coerced him to confess involvement. 9. PW1 averred that he was detained without trial and subjected to torture and ill-treatment for 7 months and 16 days from 1st August 1982 to 16th March 1983 when he was informed that investigations had established that he had not committed any crime and he was released from detention. 10. Furthermore, upon being released from detention PW1 was also informed that he had already been dismissed from the Kenya Armed Forces, warned never to report to any military establishment, denied any explanation or letter of dismissal and was not paid any terminal benefits. 11. Counsel leading the PW 1 probed on why it took him 40 years to institute this Petition to which he replied thus: ***“One was fear of government in place; President Moi was very powerful and very influential. (informed that President Moi left office in 2002), Kibaki came in but my belief was that there was strong influence of Moi in the system. I was not confident anything can happen even after Moi left.”*** **On cross-examination by Mr. Musyoka for the Respondent, PW 1 was challenged to provide evidence that he was actually in jail to which he responded:** ***“It is common knowledge…I have no document to show that.”* On medical evidence substantiating allegations of torture, PW 1 similarly replied:** ***“No, I have not tabled that.”*** 1. **PW2 Samson Kipkenei Kebeney**, also testified on 5/10/2023. He relied on his affidavit dated 7th November 2022 and further affidavit dated 26th June 2023 and testified that he was enlisted to the KAF on 2nd July 1974 and after basic military training he was stationed at Eastleigh Air Base Service No. 021877 and KAF Nanyuki in various capacities, and by the time of the coup attempt he was a Sergeant. He produced his Certificate of service-*P. exhibit 2.* 2. PW2 testified that, on the day of the coup attempt on 1st August 1982, he was stationed at Eastleigh Air Base and maintained that he was not aware of any coup plot and merely obeyed lawful orders issued by his superior officers. 3. PW2 stated that after the attempted coup was suppressed, heavily armed officers of the Kenya Army and Kenya Navy entered Eastleigh Air Base and ordered all KAF personnel to surrender and they all surrendered peacefully but despite the peaceful surrender, he was arrested, severely beaten using gun butts, kicks, fists, slaps and sticks, stripped naked and bundled into an army truck before being transported to Kamiti Maximum Security Prison (hereafter "Kamiti") while the beatings continued. 4. PW2 further averred that while in Kamiti, he was forced to walk on his knees on a rocky path as prison and military officers continued to beat him. He was denied both food and water for 2 days and was detained without trial for 4 months in overcrowded, poorly ventilated cells, without toilet facilities and with only tattered pieces of blankets infested with lice and bedbugs, making it almost impossible for him to sleep, and was subjected to repeated interrogations by police and army officers who beat him up coercing him to confess participation in planning the failed coup, which allegations he consistently denied. 5. PW2 narrated that he was transferred from Kamiti to Naivasha Maximum Security Prison (hereafter "Naivasha") where he was first detained in solitary confinement in a dark, waterlogged cell with the smell of human waste, without lighting and denied food, water and toilet facilities. He was detained without trial in Naivasha for 3 months where he was repeatedly beaten up with slaps, fists, kicks, gun butts and batons by army and police officers during interrogations and frequently denied food. 6. PW2 further stated that around March 1983, he was transferred to Kahawa Garrison in Nairobi where he remained detained in the guard room for about 2 weeks until the 16th of March 1983when he was informed that investigations had established that he had not committed any offence and was being released from detention. 7. Upon release, PW2 stated that he was told by a senior army officer that he had been dismissed from service but was not furnished with any dismissal letter or any reasons. He was warned not to go to any military base/installation. He was given worn-out civilian clothes, escorted to Nairobi Railway Station and given bus fare to take him his rural home in Kapsabet, Nandi County. 8. PW2 stated that he was unlawfully detained without trial for a total period of 7 months and 16 days, from 1st August 1982 to 16th March 1983, throughout which period he was held completely *incommunicado* and subjected to torture and ill-treatment. 9. On cross-examination by Mr. Musyoka for the Respondents, PW 2 said he had no document to show that he was in any of the mentioned prisons. 10. **PW3 Nelson Kiprotich Chepsiror**, briefly testified on 5/10/2023 and was sttod down. He subsequently took to the witness stand on 4/12/2024 and complteled his testimony. He relied on his affidavit dated 7th November 2022 and further affidavit dated 26th June 2023. He testified that he was enlisted into the KAF on 7th February 1979 and was a Senior Private at the time of the attempted coup. 11. He narrated that on the material day at around 2.00 p.m, Kenya Army soldiers stormed Nanyuki Air Base, ordered all Kenya Air Force personnel to surrender, arrested all of them including himself, stripped them naked, brutally beat them with fists, slaps, kicks and gun butts before being detained in the Supplies Block where he underwent repeated interrogations accompanied by severe, brutal and indiscriminate beatings by the interrogating army officers. 12. PW3 stated that he was subsequently detained in Kamiti Maximum Security Prison and Naivasha Maximum Prison where the beatings, deprivation food and water continued and he was held sometimes in solitary waterlogged cells and at times in overcrowded cells and was interrogated, threatened with further solitary confinement until he signed a false confession to save his life. Explaining why it took him long to seek justice, PW3 stated in chief as follows: ***“The Government of Moi you could not come out to complain. Also, the issue of money. We were arrested and jailed, we have not had any means.”*** 1. On **8th March 1983, he was escorted to the Court Martial at Langata Army Barracks** and charged *with the offence of mutiny and pleaded guilty to the charge on advice of the military counsel assigned to him*. *He was convicted and sentenced to one (1) year's imprisonment which he served at Industrial Area and Kisumu G.K. Prisons (also known as Kodiaga Prison), and was released on or about 7th March 1984*. Upon his release from prison, PW3 stated that he was informed that he had been dismissed from the armed forces and warned never to go to any military base. 2. PW3 further stated that he was unlawfully held *incommunicado* in pre-trial detention for 7 months and 8 days, from 1st August 1982 to 8th March 1983, and was repeatedly tortured, ill-treated and denied basic needs such as food, water and medical treatment for injuries and pain inflicted on him by army and prison officers, and subsequently unlawfully dismissed from the armed forces without a hearing, all in violation his fundamental rights and freedoms guaranteed by the former Constitution. 3. **PW4 John Nyaga Kaibiru**, relied on his affidavit dated 7th November 2022 and further affidavit dated 10th July 2023. He testified that he was enlisted into the KAF on 15th August 1974 and was a Corporal at the time of the attempted coup. Upon hearing about the coup through the radio whilst at his parents’ home in Kathangacini village, as directed in the radio news, he surrendered at Gatunga Police Station on 4th August 1982 and was arrested and transferred to Nanyuki Air Base, where he was stripped to his undergarments, severely beaten with kicks, slaps and gun butts and forced to walk on his knees, detained without medical attention and on one meal a day until 13th August 1982 by the Kenya army officers. 4. PW4 stated that from 13th August 1982, he was thereafter detained in Kamiti Maximum Security Prison and Naivasha Maximum Security prison half-naked, in solitary confinement for several days in a dark, waterlogged cell, severely beaten, denied food, drinking or bathing water, toilet facilities and sometime forced to drink the dirty water in the flooded cell in order to survive whilst subjected to repeated interrogation by police officers, Criminal Investigation Department (CID) officers, Special Branch officers and army officers, who coerced him to confess involvement in the attempted coup but he refused. 5. PW4 further narrated that on *3rd March 1983 he was escorted to Kahawa Army Garrison where a senior army officer informed him that he had been exonerated and was being released and admitted to the newly formed 82 Air Force*. He was allocated a new service number for the 82 Air Force and informed that he would later receive information from his local provincial administration on the date for reporting to duty. However, no such communication was ever made and he was never redeployed. 6. PW4 revealed that he was unlawfully detained *incommunicado*, without trial for 7 months, from 4th August 1982 to 3rd March 1983, during which period he was subjected to torture and cruel, ill-treatment in violation his fundamental rights and freedoms guaranteed by the former Constitution. 7. **PW5 Nicholas Njau Ndiritu**, relied on his affidavit dated 7th November 2022 and further affidavit dated 19th June 2023. He testified that he was enlisted into the KAF on 24th December 1980 No. 025006 and was a Junior Private at the time of the attempted coup. 8. PW5 stated that he was brutally arrested on 1st August 1982 at Nanyuki Air Base by army soldiers from the neighbouring 1st Kenya Rifles (1KR) who stripped him naked and detained him in the Supplies Block for two 2 weeks. He was denied food, drinking water and sleep, repeatedly beaten and continuously interrogated and coerced to falsely confess planning the coup. 9. PW5 further narrated that after detention at Nanyuki Air Base, he was detained at Eastleigh Air Base, Kamiti Maximum Security Prison and Naivasha Maximum Security Prison where he was naked, severely beaten by prison warders with sticks, batons, fists, slaps and kicks, detained sometimes in solitary confinement in a dark waterlogged cell, without lighting or toilet facilities, in overcrowded cells, without ventilation, permanently lit, denied food, drinking water and bathing water as prison warders claimed there were no food rations for soldiers in prisons and was allowed outside the cell for only one hour each day. 10. PW5 testified that during detention in Naivasha Maximum Prison he was repeatedly interrogated by police and army officers who threatened to detain him in the waterlogged cell unless he confessed to planning the coup. Fearing he would die from starvation and the harsh conditions of solitary confinement, he eventually signed the prepared statement without reading its contents, after which the interrogations ceased. He revealed that he was detained without trial in Naivasha and Kamiti until 31st December 1982 when he was arraigned before the Court martial at Langata Barracks charged with the offence of mutiny to which he pleaded not guilty and was returned back to Kamiti and was never taken back to the Court martial for trial. 11. On 23rd February 1983 he was escorted to Kahawa Army Barracks and a senior military officer informed him that he was being released from detention but had been dismissed from the armed forces and warned never to go to any military base. He was then escorted to Machakos Country Bus Station, given Kshs. 8 as bus fare to his rural home and never received any information regarding the unresolved Court Martial proceedings. 12. PW5 stated that he was unlawfully detained without trial for 7 months, from 1st August 1982 to 23rd February 1983, and in that period he was tortured and ill-treated, denied medical treatment for injuries inflicted on him, frequently denied food and held *incommunicado* and was dismissed from service without being afforded any hearing and without payment of salary or terminal benefits. 13. The 3rd Petitioner, Douglas Macharia Ruiru, filed his affidavit dated 7th November 2022 and further affidavit dated 26th June 2023. However, he was unable to testify orally before the court on the basis that he lived in the United States of America and due to the nature of his work, he could not attend a virtual hearing. On 4th December 2024, the court held that since directions were given that the hearing of the case was by way of viva voce evidence, it was too late in the day to avoid the court directions when all the other petitioners had testified orally. Further, the respondents would be prejudiced as they insisted on cross examining the 3rd petitioner on the documents he sought to rely on. Thus the court disallowed the application to adopt the 3rd petitioner’s affidavits and ordered that in the absence of the 3rd petitioner attending court, his affidavit evidence would be excluded in the proceedings. **The Respondents’ Case** 1. In defence, the respondents called Major Mwenda Benard who testified as DW1. He relied on his replying affidavit dated 17th December 2024. Major Mwenda Bernard 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 stated that the petitioners waited forty years before seeking redress and that their explanations are insufficient. Furthermore, DW1 countered that, even if there was fear of the former regime, that could explain the period before 2002, yet the petitioners did not satisfactorily explain why they did not institute proceedings after the change of Government in 2002 or following the promulgation of the Constitution of Kenya, 2010. 2. DW1 further stated that the delay has prejudiced their defence because persons who could have testified are no longer available and the records have also been lost or degraded. He stated that the petitioners failed to prove torture or inhuman treatment and that the said allegations are largely unsupported by documentary or medical evidence and that the petitioners did not identify with sufficient precision the persons responsible for the alleged violations. 3. DW1 further contended that the petitioners were subject to the Armed Forces Act and its rules and regulations and therefore their arrests arose from the attempted coup and that their detention and disciplinary processes were governed by the military law applicable at the time. 4. The petition was disposed of by way of written submissions. **Petitioners’ Submissions** 1. The petitioners identified three issues for determination as follows: whether the petition is time barred by limitation of actions; whether the petitioners’ proved that their fundamental rights and freedoms were violated and whether the petitioners are entitled to damages and to what amount. On the first issue, the petitioners submitted that they were conscious of the fact that they filed the petition 40 years after the complained violations and thus explained the delay in their supporting affidavits. They further submitted that all the superior courts are unanimous that neither the former nor the current Constitution provide for limitation of actions for enforcement of fundamental rights and freedoms. Given the supremacy of the Constitution, statutes of limitation do not apply to actions for enforcement of the Bill of Rights. Reliance was put on the celebrated case of **Dominic Arony Amolo v Attorney General [2003]eKLR,** Hayanga J, succinctly stated the law thus (page 2 and 4):- ***…The point to decide here is whether breach of Fundamental Rights and redress* *thereof can be brought to Court any time irrespective of the provisions of Limitation Act……To put it another way whether in interpretation of constitutionally entrenched provisions of Fundamental Rights, the Court is in any way circumscribed by legislative statutes like Limitation Act. Section 3 of the Kenyan Constitution provides;- “This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”….. I, therefore, think and I so hold that Section 3 of the Constitution excludes the operation of Cap 22 with regards to claims under Fundamental Rights and further that the Fundamental Rights provisions cannot be interpreted to be subject to the legal heads of legal wrongs or causes of action enunciated under the Limitation Act Cap 22.*** 1. They further submitted that the Court of Appeal has held that the doctrine of inordinate delay cannot be applied as a bar to enforcement of fundamental rights and freedoms, citing the cases of **Zinj Limited v Attorney General & 3 others [2019]eKLR** where the Court reiterated that:- ***…..Fundamental rights were not kept in the Constitution simply for individual benefits – these rights were put up as a matter of public policy and therefore the doctrine of inordinate delay, estoppel, acquiescence or waiver cannot unequivocally be applied as a bar to enforcement of fundamental rights.*** 1. In the case of **Janmohamed & 2 others v Chelugui & 7 others [2022] KECA 720 KLR** the Court of Appeal reaffirmed thus:- ***Guided and convinced of the sound jurisprudence that there is no time limit for filing a constitutional petition, we find the ground that the trial judge erred in failing to dismiss the Petition on account of delay, acquiescence and laches has no merit. Unless expressly stated in the Constitution, the period of limitation in the Limitation of Actions Act do not apply to violation of rights and freedoms guaranteed in the Constitution. The law concerning limitation of actions cannot be used to shield the State or any person from claims of enforcement of fundamental rights and freedoms under the Bill of Rights.* *(See Dominic Arony Amolo vs. Attorney General Nairobi HC Misc. Civil Case No. 1184 of 2003 (O.S) [2010] eKLR; Otieno Mak’Onyango vs. Attorney General & another Nairobi HCCC No. 845 of 2003). 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***](https://new.kenyalaw.org/akn/ke/act/1968/21)***. However, each case is to be decided on its own merits and a caveat need to be stated as correctly observed in Johnstone Ogechi vs. The National Police Service [2017] eKLR.*** 1. The petitioners further submitted that the Supreme Court in **Wamwere & 5 others v Attorney General [2023]KESC 2KLR,** affirmed this Court and the Court of Appeal on the inapplicability of limitation period in enforcement of fundamental rights and freedoms, thus:- ***.……We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case-by-case basis.*** 1. The petitioners argued that they gave reasons for the delay in coming to court but as the replying affidavit of Major Mwenda reveals, the explanations for delay proffered by them are impugned by the respondents on the ground that other petitioners who were members of the KAF and claimed to have been subjected to similar violations of their rights and freedoms filed petitions earlier and in any case there cannot be valid reasons for coming to court many years after the change of the Moi regime in 2002 and the promulgation of the 2010 Constitution. They further argued that the petition is intertwined with the national quest for righting past injustices that include gross violations of fundamental rights such as claimed in their petition. They further submitted that the three tiers of superior courts have affirmed that it is a sound judicial policy for the courts to assure transitional justice by vindicating past violation of fundamental rights in order to secure the country’s future. Expounding on the decision of the Court of Appeal in **Cholmondely v Republic [2008]eKLR, Lenaola J,** (as he then was), in **Jennifer Muthoni Njoroge & 10 others v Attorney General [2012]eKLR,** held that:- ***..The reasoning for the proposition that it is the State that must be held liable also found favour in the case of Cholmondely v Republic [2008] eKLR ……….In the same case, the Court of Appeal admitted failings of the Courts in the past and argued that Courts “must now vigorously enforce and enforce against the State the fundamental rights and freedoms of the individual guaranteed by the Constitution.” I emphasize this point because it is quite obvious to me that as a lesson for the future, the State must today pay the price for its failings in the past.*** 1. Like dependence was placed in the case of **Zipporah Seroney & 5 others v Attorney General [2020]eKLR**, wherea petition for enforcing fundamental rights during the ‘Kenyatta I’ regime. Korir J, (as he then was) held:- ***….Indeed this petition relates to events that occurred during the presidency of Mzee Jomo Kenyatta. The petition has been brought about forty five years after the deceased was allegedly arrested and detained….. In the circumstances of this case, it is not too late to peer into the past and correct the injustices that may have occurred in our history. I therefore reject the Respondent’s assertion that this petition is time barred.*** 1. Further in the case of **Wamwere & 5 others v Attorney General (supra),** the Supreme Court finally answered the respondents argument by affirming that affording transitional justice to petitioners is a valid ground for excusing belated enforcement of fundamental rights in the context of the transformative Constitution of Kenya 2010 and held:- ***With respect to the consolidated appeal, the decisions of the two superior courts largely turned on the failure by the appellants to file their claims immediately after two critical transitional moments in Kenya’s recent democratization history. This being after the 2002 transition when President Moi left office or immediately after the 2010 transition to a new constitutional dispensation. The two superior courts observed that as a matter of fact many other similarly situate victims of past abuses filed their claims in court immediately after these transitional moments. This leads us to pose the question; given the nature of transitional justice claims, was it fatal for the appellants to have filed their claims in 2013?. It has been recognized that transitional moments can be long-drawn and there are no clear-cut dates when a transition can be said to have run its full course. Especially, taking into account the tendency for re-irruptions in the form of renewed quests for justice. This is poignantly brought out in Cath Collins, ‘Post-Transitional Justice: Human Rights Trials in Chile and El Salvador’, (The Pennsylvania State University Press, 2010) at pages 21 and 22 as follows: “… the persistence of the justice question into the post- transitional period, or periodic “re-irruptions” of it in the form of renewed accountability pressure, can be viewed as positive signs of democratic institutional health rather than as crises or breakdowns of transition. It is not only conceivable but logical to expect that private actors and even future democratic governments might pursue accountability more vigorously than transitional administrations … certain dimensions of post-transition polities can be expected to particularly affect the emergence of post-transitional justice activity. One is the quality and depth of subsequent democratization, particularly progress toward rule of law. The health and vigor of civil society organization in general and its ability to access the justice system, in particular, will also be relevant… The passage of time is a factor that can have varied and sometimes counter-intuitive effects. It may seem set to eventually consign the memory of victims and the concerns of survivors to irrelevance or even oblivion, but a look at the currently observable cases of post- transitional justice change suggests that other outcomes are also possible. The passage of time can serve to make the addressing of accountability more possible, perhaps less politically costly, even as it sometimes reduces both the personal (victim/survivor) and institutional (social) benefits.” [Emphasis added]. What we deduce from the above is that late or recurring pursuit for justice are a distinctive motif of the quest for justice in transitional contexts. In other words, renewed or late quest for accountability and justice after the initial burst of efforts for justice is a phenomenon that is inherent in transitions. It follows that the persistence of the appellants and other litigants to get justice after other claimants had lodged similar claims is not something that is unique to the appellants herein as it is a universal phenomenon that is evident in the quest for transitional justice and accountability.*** 1. Significantly, the Supreme Court in **Wamwere & 5 others v Attorney General (supra),** specifically affirmed this court’s findings in the similar petition brought by former KAF officers in **Gerald Juma Gichohi & 9 others v Attorney General [2015]eKLR** that their claims of torture in the aftermath of the 1982 coup attempt fell for redress in the context of historical injustices in transitional justice thus; ***An additional factor to take into account is the fact that the Constitution explicitly envisages redress for historical injustices occurring during the repressive era…[54] In that regard, Lenaola, J., as he then was, held the following persuasive view in* Gerald Juma Gichohi & 9 others v Attorney General, HC Petition 587 of 2012; [2015]eKLR *at paras. 94-[T]he history of this country would lead a reasonable man to state that it was almost impossible a few years ago to sue the regime and get away with it especially on matters of human rights. In that regard, the recent public apology by President Uhuru Kenyatta for violations of human rights by past regimes is an affirmation of that fact. In the same breath, it was also the Petitioners’ claim that the Judiciary has affirmed that it is vindicating past violations of fundamental rights and freedoms in order to secure the Country’s future….[It] is true that the State today in a reconfigured Kenya, cannot shut its eyes from the failings of the past, neither can it claim innocence for the excess of past regimes. It must pay, the price for its historical faults and I must also agree with the Petitioners submission that the instant Petition should be approached in the context of transitional injustices especially now that there is a new dispensation under the Constitution 2010. Time is ripe for addressing past injustices that included gross violations of fundamental rights and freedoms as witnessed in the past and the citizenry must not fault the Courts for doing justice, albeit belatedly…*** 1. Similarly in the recent case of **Attorney General v Matu [2025] KECA 403 (KLR)** where the respondent was also a former KAF officer whose petition had alleged similar violations in the aftermath of the failed coup, the Court of Appeal, following the Supreme Court decision in **Wamwere & 5 others v Attorney General** (supra), located his petition as one involving transitional justice, thus: ***………We understand the appellant to be saying that, owing to the passage of about 29 years since the alleged torture, the claim has put them in a difficult situation when it comes to responding to the circumstances of the said torture. Good luck, this is not the first time our courts are having to deal with issues of violations or threatened violations of fundamental rights and freedoms during the period in question. For instance, the Supreme Court in Monica Wangu Wamwere & Others -vs- Attorney General, Petition Nos. 26, 34 and 35 of 2019 acknowledged the historical injustices and gross violations of fundamental rights that the State visited on those who sought or attempted, or even thought of, approaching courts for redress. Such claimants who have brought their claims following the promulgation of the 2010 Constitution are seeking to right the historical wrongs that they suffered and fall in the category of transitional justice claimants whom the courts have to treat differently from persons who are seeking justice in ordinary claims covered by the period of limitation. We take the view that the respondent’s petition fell within the category of a transitional justice claim, and therefore accept the finding by the learned Judge that the political circumstances in the country, and especially those related to the 1982 attempted coup, were such that it was difficult for the respondent to file a petition. He could not approach the court to claim that he had been tortured by the State. Therefore, his explanation of the delay, which the trial court accepted, was plausible. The delay was not inordinate.*** 1. The petitioners urged the court to approach the instant petition in the context of transitional justice process and its phenomenon of recurrence and re-irruptions. 2. In regards to the question of whether delay in filing this petition significantly prejudiced the respondents, the petitioners submitted that the respondent merely contended that the late filing of the petition prejudiced the respondents’ right to a fair trial because *“evidence favourable to its case has long been lost and/or degraded and witnesses favourable to their case have since left the service or died”* without outlining the same or explaining how the same was lost or degraded. They further failed to disclose the, alleged “witnesses favourable to their case” who might have “left service or died”. DW1 Major Mwenda conceded that there was no attempt to look for officers who served the KAF at the time such as General Karangi to testify for the respondents. However, the existence of the petitioners is testimony that officers who served the armed forces or specifically the KAF at the time can be found. 3. The petitioners further affirmed that lawful destruction of public records could only be carried out in accordance with the Records Disposal Act (Cap 14, Laws of Kenya) and the Public Archives and Documentation Service Act (Cap 19, Laws of Kenya) and the rules thereunder, which the respondents failed to provide evidence of any destruction of documents of the KAF in compliance with the said statutes. That notwithstanding, it is an offence to destroy public records without written consent of the Director of Public Archives and Documentation Service as provided in Section 8(2) and (7) of the Public Archives and Documentation Service Act. 4. The petitioners reiterated that the absence of lawful evidence of destruction of records held by the KAF for the period in question, estopped the respondents from invoking the crime of destruction of public records without authority as a defence to the petition and that without evidence of when and by whom the public records were allegedly destroyed and without a certificate of destruction under the Records Disposal Act, the respondents alleged absence of records failed to demonstrate how the same prejudiced their defence to the petition. 5. On the second issue, the petitioners submitted that the petition exhibited that their claims in threefold; prayer (i), the petitioners claim that they were brutally arrested, tortured, ill-treated and placed in extreme detention conditions in the aftermath of the failed 1st August 1982 military coup; in prayer (ii), that they were held in unlawful *incommunicado* pre-trial or detention without trial of more than 7 months under torture and ill-treatment and; in prayer (iii), that they were unlawfully dismissed from the service of KAF without a hearing and/or trial for any offence. 6. On the issue raised by the respondents that the petitioners may not have been members of the armed forces, the petitioners submitted that they testified as to their service numbers which were not disputed as belonging to any other persons other than them. Further, other than the 5th petitioner, all them annexed and produced their certificates of service in the armed forces which certificates were not alleged to be false. To buttress that point, reliance was placed on the case of [**Samuel Okumu Okwany v Attorney General [2022] KEHC 1867 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/1867/eng%402022-03-03)where the respondent raised a similar objection that the petitioner may not have been a member of the armed forces, this Court rejected the objection holding thus:- ***The Petitioner has attached to his Petition a Certificate of Service in the Kenya Armed Forces with Serial No. 8458 and Service No. 22232 indicating that he was enlisted on 12th February 1976. The respondent has merely denied the Petitioner was a Military Officer and averred that there was never an officer by the Petitioner’s name bearing that service number. It has however not adduced evidence to this court as required of it by Section 107 of the Evidence Act to show that the Petitioner was not the owner of the said service number. I find that the Respondent could have either shown this Court that the said certificate is a forgery, or it did not exist or in support of its arguments produce a list to show who owned that number. I find that by dint of Section 83 of the Evidence Act the certificate the document relied upon by the Petitioner is a genuine document and proves that the Petitioner was a member of the Kenya Defence Forces.*** 1. The petitioners submitted that on proof that their rights and freedoms were violated, it was evident that upon arrest they were severely beaten, stripped naked and escorted naked into custody where they were again brutally beaten, detained *incommunicado* in solitary confinement, in waterlogged cells, or in overcrowded cells or in totally dark or permanently lit cells, denied food, drinking or bathing water, sleep, toilet facilities, medical care and subjected to harsh physical and mental interrogations intended to extort confessions. They further pointed out that the respondents did not call any witness from any of the named prison facilities or who served in the armed forces at the time to rebut the claims of the petitioners and they made no attempt to secure such witnesses. Given the above, they submitted that their claims were uncontested. 2. The petitioners submitted that their detailed narrative of the violence visited on them upon arrest, deprivation of basic needs and extreme conditions of detention were violations of the integrity and security of their persons specifically torture and ill-treatment contrary to Sections 70(a) and 74(1) of the former Constitution. They further argued that despite not having medical documents exhibiting the torture inflicted on them, the same did not detract from the fact that they were tortured and ill-treated. Reliance was placed in the case of **Harun Thungu Wakaba v Attorney General [2010]eKLR** where the court held:- ***It will be noted that none of the plaintiffs provided any medical evidence in support of the allegation that they were tortured or injured. While the medical evidence would have provided appropriate corroboration to the plaintiffs’ allegations, the absence of the medical evidence is not critical… Therefore, the question is whether the various acts to which each of the plaintiff was subjected to, as deponed to in the respective affidavits qualify to be torture or inhuman or degrading treatment within the meaning of the definition provided in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. A perusal of the affidavits sworn by the plaintiffs, reveal that there was actual infliction of severe physical pain, caused by the plaintiffs being physically assaulted…..using various articles. The exposure of the plaintiffs to….as well as the confinement naked in a dark waterlogged cell, were all actions which endangered health…. The infliction of this physical and psychological pain was done at Nyayo House which was a government institution. It was also carried out by government officials. Further, the infliction of the pain was done during the course of interrogation with a view to obtaining information or a confession from the plaintiffs. Thus, all the ingredients of the definition of torture as contained in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment were present. The actions described in the affidavits would constitute infringement of the right to protection against inhuman treatment as provided under Section 74(1) of the Constitution.*** 1. Further reliance was placed in the case of **David Gitau Njau & 9 others v Attorney General [2013]eKLR,** where Lenaola J, (as he then was) held:- ***… It is true that medical evidence would have corroborated the Petitioners evidence and would have been enough to establish the Petitioners’ allegations, but, to my mind, the absence of such evidence is not fatal because of what I have said above; that their averments of facts were not specifically or in any way contradicted by the Respondent.*** 1. The Supreme Court in the case of **Wamwere & 5 others v Attorney General (supra)** finally affirmed that medical reports are not mandatory in proof of torture when facts adduced are capable of establishing the core elements of torture and ill-treatment on a balance of probability thus:- ***Having fleshed out the normative requirements of section 74(1) of the repealed Constitution, did the appellants establish that they were subjected to either severe or significant mental or physical pain or suffering? The determination of the above question by the two superior courts below largely turned on evidential assessment. In particular, the two superior courts’ position was that the appellants neither produced any medical reports proving physical or psychological torture nor records for their arrest. Moreover, the appellants seemed to be in good health when they appeared before the High Court. In addition, the two superior courts found that the Reports in the Society Magazine which they sought to rely on were inadmissible. On our part, we agree with the two superior courts below to the extent that there was an evidential gap which was not surmounted by the appellants regarding whether they were arrested and subjected to torture. However, taking into account the violent nature of the disruption of the subject protest/assembly, it is more likely than not that the whole episode had a psychological traumatic effect on the appellants, who we have held were at the locus in quo. Although the appellants did not exhibit any physical injuries or medical reports, we are persuaded that the whole incident had a psychological/traumatic effect on them. This in our view can be equated to inhuman treatment which was a violation of Section 74(1) of the repealed Constitution.*** 1. The petitioners further submitted that the instant court has distinguished the necessity for medical reports in personal injury claims from claims of torture and ill-treatment in constitutional petitions. Reliance was placed in the case of **Peter Mauki Kaijenja & 9 others v Chief of Defence Forces & another [2019]eKLR,** another case of former KAF officers, Mativo J (as he then was) held:- ***…..In this case, we are not essentially dealing with personal injuries but with inhuman treatment, torture, harassment and the mental and physiological effects of such actions to the victims.*** 1. Further, the instant court has also taken judicial notice that lack of documentary evidence of torture is excusable given the difficulty of obtaining such evidence in the harsh and secretive circumstances that torture occurred. In **Jennifer Muthoni Njoroge & 10 others v Attorney General (supra)** this Court held thus:- ***…..When one is arrested and tortured mercilessly, where is the opportunity to take photographs of the torturers, get medical reports to show the injuries inflicted and where is the opportunity to call eye witnesses.*** 1. Further reliance was placed in the case of **Herman Marine Nderi v Attorney General [2012]eKLR,** another case of torture in 1986 during the Moi regime, this Court also held:- ***I note that the Respondent’s main argument is that evidence of torture should have been presented by the Petitioner. By what means I don’t know. Documentation” Medical records” Eye witnesses”. It is common knowledge that torture was not being conducted post-1982 with meticulous record keeping accompanying the act. Neither were lawyers and relatives being invited as witnesses. It was something done in secrecy*…. *From the evidence that I have detailed above, it is more likely than not that the twenty eight (28) days that the Petitioner was being held unconstitutionally was also accompanied by the acts of torture that he has complained of otherwise why would it take close to a month to charge him on a simple charge of taking an oath, close to a year before his arrest.*** 1. Similarly in **David Gitau Njau & 9 others v Attorney General (supra)** the Court found similar claims amounted to torture and ill-treatment holding thus:- ***…..The petitioners claimed that immediately upon their arrests, they were stripped naked in public, were made to walk on their knees on concrete floors, whipped with a whip, kicked around, bludgeoned all over their bodies …They were also moved into custody in military trucks whilst naked and in full view of the public. In the circumstances I find and hold that the Petitioners were subjected to torture, cruel and degrading treatment contrary to section 74(1) of the former Constitution. In doing so, I will quickly dismiss the Respondent’s submission that the petitioners may have been involved* *in a mutiny; torture is not permissible or excusable under any circumstance****.* 1. Further in **Denish Gumbe Osire v Cabinet Secretary, Ministry of Defence & another [2017] eKLR,** involving an ex-KAF officer, it was held thus:- ***….Noting that the Petitioner……..was also subjected to intense beatings, incarceration in water logged cells, starvation and promises of food and water if he confessed to participation in the attempted coup, threats of being shot to death, the hitting and squeezing of his testicles using an iron bar and being held in solitary confinement, then I am certain that the threshold expected of any claim of torture, inhuman and degrading treatment was reached and there being no defence to torture, it matters not whether the Respondent has denied the above actions*.** 1. The petitioners submitted that torture and ill-treatment are absolutely prohibited under Articles 4 and 7 of the ICCPR and Article 2 of CAT. The absolute prohibition of torture is a *jus cogens*, a peremptory norm of international law. Thus, DW1 having conceded that he had no evidence of contrary treatment of them other than what they averred and torture being absolutely prohibited, they are entitled to the declaration in prayer i. 2. In regards to prayer ii, the petitioners further submitted that they were detained for a period of 7½ months before they were either released without charge (for the 1st, 2nd and 5th petitioners) or arraigned before the Court martial (for 4th and 6th petitioners). They further submitted that during the State of Emergency in colonial Kenya, long pre-trial detention of suspects was frowned upon as well. Reliance was put on the case of **Njuguna s/o Kimani & 3 others v R (1954) 21 EACA 316, the Court of Appeal for Eastern Africa** held thus:- ***The notion that the police* *can keep a suspect in unlawful custody and prolong their questioning of him by refraining from formally charging him is so repugnant to the traditions and practice of English law that we find difficulty in speaking of it with restraint.*** 1. The petitioners stated that the respondents never gave any reasons for the detention-without-trial or the long pre-trial detention of the charged petitioners nor did he lead evidence of any inquiry from any of the prisons asserted by the petitioners and instead claimed that the Armed Forces Act allowed inordinately long pre-trial detention suspected soldiers which was misleading as the maximum pre-trial detention under the Armed Forces Act was 8 days, and was to be accompanied with a report of reasons for any further delay that might be required. Reliance was put on the case of **David Gitau Njau & 9 others v Attorney General (supra),** where this Court held thus ***The relevant provision of the Armed Forces Act dealing with arrests are to be found in Section 72(2) and (3) which provides as follows; “(1) The allegations against a person arrested under section 70 or section 71 shall be investigated without unnecessary delay, and as soon as practicable thereafter either proceedings shall be taken to deal with the allegations or he shall be released from arrest. (2) Whenever any person subject to this Act is arrested and remains in custody for more than eight days without his being tried by court martial or dealt with summarily – (a) a special report on the necessity for further delay shall be made by his commanding officer to the prescribed authority in the prescribed manner; and (b) a similar report shall be made to the prescribed authority and in the prescribed manner every eight days until a Court martial sits or the offence is dealt with summarily or he is released from arrest ……..As it can be seen, this Section provides that a person arrested for suspicion of having committed an offence under the Act shall be investigated without unnecessary delay. The Respondent thus cannot have any valid answer as to why the Petitioners were not arraigned in any Court within the time stipulated by law. On the other hand, Section 48 of that Act deals with irregular arrest and confinement......It is clear to me that the object of these provisions is to ensure that there are no unnecessary delays in undertaking investigations of arrested persons. It therefore follows that the Act endeavored to ensure as much as is possible; the arrest, confinement, prosecution and punishment of an offender under the Armed Forces Act to ensure conformity with the provisions of the Constitution. The argument advanced by the Respondent therefore cannot be true. It is also obvious to me that the Respondent failed to ensure that the provisions of section 72 of Cap 199 relating to avoidance of delay after arrest were complied with.*** 1. The Court of Appeal in **Peter M. Kariuki v The Attorney General [2014]eKLR** found the requirement for prompt production of suspects in court under section 72(3) of former Constitution applied to the military and held:- ***The second issue relates to Mr. Kamau’s submission that under the former Constitution, the constitutional rights in respect of which members of the armed forces could seek redress were limited to protection of the right to life (S. 71), protection from slavery and forced labour (S. 73) and protection from inhuman treatment (S. 74). In Mr. Kamau’s view, the appellant could not allege violation of any other constitutional rights and the trial court had erred in entertaining his complaints relating to those other rights………The relevant provision was section 86(2) which related to interpretation and savings…… We do not understand the above provision to deny members of the armed forces all rights under that Constitution save those guaranteed under sections 71, 73 and 74……. As we have demonstrated, contrary to the suggestion implicit in the respondent’s submission, the provisions of the Armed Forces Act relating to courts martial did not entail blanket derogation from guaranteed constitutional rights. Instead those provisions closely mirrored the principles and values of the Bill of Rights in the Constitution. We find the argument totally bereft of merit.*** 1. The petitioners argued that by detaining them without-trial for more than 7 months, the respondents violated their fundamental rights to personal liberty and due protection of the law under the retired Constitution and under Section 72 of the repealed Armed Forces Act. Further Article 9 of the ICCPR entitled them to be promptly arraigned in order for the Court to exercise judicial power over their detention. Reliance was placed in the case of **Peter Tonny Wambua & 17 others v Attorney General [2017] eKLR** where the petitioners were held in similar unexplained pre-trial detention as in this petition, the detention was found unlawful, thus:- ***In the present case, the Respondent made no effort to explain why the Petitioners were incarcerated for long periods without being taken to any Court including the Court Martial. In their evidence, the Petitioners were held between 25 days and over 200 days and were thereafter either released without any charge or charged and convicted at the Court Martial…[92] ….without an explanation as to why they were kept in custody from 1st August 1982 until proceedings at the Court Martial or until eventual release without charge, the Petitioners have proved that they were unlawfully detained and I so find*.** 1. Thus the petitioners urged the court to find that their long pre-trial detention, *per se,* violated their rightsto human dignity, to equal treatment and benefit of the law, freedom from torture, ill-treatment and servitude. They further reiterated that holding a person *incommunicado* in pre-trial detention for months, uncertain of their legal status and in the debilitating conditions is a violation of human dignity and amounts to torture and ill-treatment. Reliance was placed on the comments of Professor Alfred de Zayas, in his article; ***“Human Rights and Indefinite Detention”*** in the International Review of the Red Cross, Volume 87 Number 857 March 2005 (page 15 to 38), where he argues that (pages 19 and 20); ***Besides constituting a violation of Article 9 of the ICCPR, indefinite detention may also entail a violation of other provisions of the Covenant, including……Article 7, which prohibits torture and inhuman or degrading treatment or punishment, and Article 10, which provides for humane treatment during detention. There can be little doubt that indefinite detention entails inhuman treatment and that in certain circumstances it may even constitute a form of torture…….As indicated above, indefinite detention may raise issues under the peremptory international law rule against torture. Because of the psychological effects that indefinite detention may have on individuals, it may also entail violations of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.*** 1. The petitioners submitted that they were entitled to the equal protection of law at all times and “*the protection of the law”* as a substantive fundamental right under Section 70(a) of the former Constitution. 2. In regards to prayer (iii) the petitioners submitted that their employment was terminated on the ground of *“service no longer required”* as appeared on their certificates of service. However, the respondents did not lead any evidence of the process of law followed in terminating the services of the petitioners from their public service as soldiers. They further submitted that they were simply informed of their dismissal from the armed forces upon their release from the unlawful detention. Reliance was placed on the case of **Attorney General v Matu (supra),** where the Court of Appeal held:- ***The trial court did not, however, mention that the respondent had sought to be compensated for unlawful termination of his service and for having lost eight (8) years of service and loss of career. He was detained for a long time without being charged. In awarding damages, courts exercise a very broad and open- ended remedial discretion taking into account what is just, fair and reasonable in the circumstances, but also minding that the award has to reasonably compare with awards in similar cases. In a case like this one, the damages should serve to enhance the dignity of the respondent. We have considered comparable awards of Samwel Chege Gitao & Others -vs- A.G. [2016]eKLR and Peter M. Kariuki - vs- A.G. [2014]eKLR. The respondent admitted that he is benefiting from his pension save that it was paid less the 8 years given his unlawful termination. We have observed that the trial court failed to consider the issue of the unlawful and early termination of the respondent’s service in computing the damages, and therefore we have to interfere with the court’s discretion. In our considered view, the award of Kshs.3,000,000/= was inordinately low. We set it aside and, in its place, there shall be an award of Kshs.20,000,000/= plus costs and interest.*** 1. On the issue of damages, the petitioners relied on the case of **Lucas Omoto Wamari v Attorney General & another [2017] eKLR,** where the Court of Appeal held:- ***Mere declarations without any specific award of damages do not vindicate the appellant neither do they convey a deterrent message regarding the sanctity of the Constitution and the need for protection of fundamental rights and freedoms. Therefore, the omission to make a specific award for these violations, was an error that justifies the intervention of this Court.*** 1. The petitioners further submitted that the right to compensation for unlawful deprivation of personal liberty was in fact specifically provided for in Section 72(6) of the former Constitution, thus; *“72…(6) A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that other person.”* 1. The petitioners further relied on the case in the Supreme Court of **Wamwere & 5 others v Attorney General (supra)** where the court affirmed the normative basis for the award of damages for enforcement of human rights thus:- ***Crafting remedies in human rights adjudication goes beyond the realm of compensation for loss as it is principally about vindicating rights. Though the appellants did not lead any evidence of the loss they may have suffered due to the violation of their right and freedom from inhuman treatment, it is important for the Court to vindicate and affirm the importance of the violated rights. The foregoing rationale is buttressed by the reasoning of the Supreme Court of Canada in City of Vancouver v. Ward [2010] 2 SCR 28. In that matter, the court held that damages may be awarded if at least one of three objects is served: individual compensation; vindication, in the sense of addressing harm to ‘society as a whole’; and deterrence, in the sense of ‘influencing government behavior in order to secure state compliance with the charger in the future’, which would promote ‘good governance’. At para. 30 the Court recognized that: “…..the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award.” In awarding damages, courts exercise a very broad, open-ended remedial discretion taking into account what is just, fair and reasonable in the circumstances of the case. In the present case, we are of the view that the damages we award should not only serve to enhance the dignity of the appellants but also be a public recognition of the wrong done to them given the historical context of this case.*** 1. On the criteria of awarding damages, the petitioners relied on the case of **Jennifer Muthoni Njoroge & 10 others v The Attorney General (supra),** where Lenaola J (as he then was) held:- ***In awarding damages therefore, I shall use the following criteria; (i) The torture inflicted on each Petitioner (2) The length of time the Petitioners were held in unlawful custody (iii) The decided cases on the subject matter (iv) what is fair and reasonable in the circumstances of each case, and I have chosen to give a lumpsum in each case.*** 1. The criteria in **Jennifer Muthoni Njoroge & 10 others v Attorney General (supra)** was affirmed by the Court of Appeal in the case of **Zablon Ombati Ongeri v Attorney General [2017]eKLR** where the Court held thus:- ***We find the criteria propounded by LENAOLA, J. (as he then was) in JENNIFER MUTHONI NJOROGE & 10 OTHERS V ATTORNEY GENERAL [2012] eKLR for the award of damages for violations of fundamental rights and freedoms enshrined in Section 84 of the repealed Constitution to be fit for our purposes herein.*** 1. The Supreme Court affirmed the said criteria of assessment of damages for constitutional violations in the case of **Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR)** and finally laid down the guiding principles as follows:- ***From the foregoing, we are persuaded that the above-quoted decisions offer a good guide on the parameters to be considered in assessing damages for constitutional violations. They are: i. The duration of the claimant’s detention; ii. The level of physical and mental suffering endured by the claimant; iii. The degree of responsibility of the individual(s) responsible for the suffering caused to the claimant. iv. The extent of the action or inaction complained of, and any other incidental rights that may have been violated as a consequence of the first breach(es). v. Award is discretionary and will depend on the facts and the circumstances of each case and vi. Award is not compensatory or punitive but a vindication of the violated rights.*** 1. The petitioners argued that they are entitled to global compensation for the interrelated violations of fundamental rights to human dignity, liberty, freedom from torture and ill-treatment, the protection of law and for unlawful termination of their employment and careers as soldiers, while taking into account the aggravating circumstances of the petition. They proposed a sum of Ksh 20,000,000/- to each petitioner who was detained without-trial and severely tortured for more than 7 months and placed reliance on the cases of **Attorney General v Matu (supra)** where the respondent was awarded by the Court of Appeal Ksh 20,000,000/- for similar violations, **Peter M. Kariuki v Attorney General (supra),** where the appellant was awarded Kshs 15,000,000/- general damages and Kshs 22,965,460/- in salary arrears and allowances, for similar violations and **Denish Gumbe Osire v Cabinet Secretary, Ministry of Defence & another (supra),** where the petitioner was awarded Kshs. 10,000,000/-, also for similar violations. The petitioners further prayed for costs and interest and interest of the award of damages at the discretion of the Court from the date of judgment. **Respondents’ Submissions** 1. The respondents identified four issues for determination as follows: are the Petitioners guilty of inordinate delay; have the petitioners proved the allegations of violations of fundamental rights and freedoms guaranteed by the Constitution; were the petitioners' detention, trial, imprisonment and discharge from service unlawful; whether the petitioners have proved their claim for general and special damages. On the first issue, the respondents argued that the etition was an afterthought and an abuse of the process of the court. Although the petitioners stated that they did not seek justice for the alleged violations because they purportedly feared the Moi government, even after the change of the regime in 2002, they claimed that they still did not have the confidence that the courts had the independence to dispense justice. The respondents argued that even after the promulgation of the new Constitution in 2010, the petitioners waited another 12 years to come to this Honourable court which does not lead to excusable delay. No adversity or compelling reasons were cited by the petitioners therefore demonstrating a clear case of forum shopping. 2. The respondents submitted that the petitioners sat on their rights for 40 years before they filed the subject petition in 2022, displaying indolence and negligence on their part as the allegations are deemed to have occurred in 1982. They further submitted that despite the general rule that there is no limitation of time set for filing constitutional petitions, for purposes of fair trial as provided under Article 50 of the Constitution one should not advertently delay commencement of a suit such that the other party is compromised in putting forth a plausible defence. They further submitted that any delay must be explained for purposes of establishing whether it can be excused and it is the burden of the delaying party to put forth a plausible explanation as to why the delay should be considered inadvertent. Reliance was put on the case of **Daniel Kibet Mutai & 9 Others -v- Attorney General, Civil Appeal (Eldoret) No. 95 of 2016, [2019] eKLR** where the Court of Appeal held:- ***Again this is an issue that has been addressed by the High Court and we are in agreement with the approach taken by the High Court (Mativo, J) in addressing a similar issue in Edward Akong'o Ovugi & 2 others v Attorney General {20191eKLR in which the learned Judge stated as follows:*** ***The next question is whether the delay of 5 years after the 2010 Constitution is unreasonable and whether it has been explained. In my view, the common law delay rule involves a two-stage inquiry: first, whether the proceedings were instituted after a reasonable time has passed, and, second, if so, whether the court should exercise its judicial discretion to overlook the unreasonable delay taking the relevant circumstances into consideration.*** ***The Respondents counsel's contention is that this suit is barred by the doctrine of laches. The doctrine of laches is a legal defense that may be claimed in a civil matter, which asserts that there has been an unreasonable delay in pursuing the claim (filing the lawsuit), which has prejudiced the defendant, or prevents him from putting on a defense. The doctrine of laches is an equitable defense that seeks to prevent a party from ambushing someone else by failing to make a legal claim in a timely manner. Because it is an equitable remedy, laches is a form of estoppel.*** ***Laches (latches") refers to a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regard to equity; hence, it is an unreasonable delay that can be viewed as prejudicing the opposing defending party. When asserted in litigation, it is an equity defense, that is, a defense to a claim for an equitable remedy. The person invoking laches is asserting that an opposing party has "slept on its rights", and that, as a result of this delay, circumstances have changed, witnesses or evidence may have been lost or no longer available, etc., such that it is no longer a just resolution to grant the plaintiffs claim. Laches associated with the maxim of equity, “Equity aids the vigilant, not the sleeping ones/that is, those who sleep on their rights]". Put another way, failure to assert one's rights in a timely manner can result in a claim being barred by laches.*** ***To invoke laches the delay by the opposing party in initiating the lawsuit must be unreasonable and the unreasonable delay must prejudice the defendant. Examples of such prejudice include: evidence favorable to the defendant becoming lost or degraded, witnesses favorable to the defendant dying or losing their memories, the defendant making economic decisions that it would not have done, had the lawsuit been filed earlier.*** ***The Respondent's counsel cited laches but never attempted to mention how the Respondent will be prejudiced. As pointed out earlier, no argument was advanced that witness or evidence cannot be traced. In any event the Respondent is the government which has institutional succession and perpetuity, hence, evidence and records cannot be easily affected by lapse of time.*** ***In considering whether delay is inordinate, the court has a discretion, to be exercised judicially upon a consideration of all the facts; and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations may include the period of the delay, and the explanation and any possible prejudice to the Respondent. I have already addressed prejudice. The period is five years after 2010. The reasons cited are inability to secure employment after being released from prison forcing them to travel overseas to look for employment and also obtain treatment for the various health conditions and complications inflicted upon them by the cruel torture and inhuman circumstances they were subjected to during arrest, interrogation and detention. All the Petitioners suffered serious injuries and developed life threatening health conditions which kept them busy. They are and continue to be on medication. To me, the delay has been sufficiently accounted for. They have provided a good and sufficient cause for the delay. I find that the explanation is reasonable.*** ***Unlike the petitioners in the above quoted case, who provided explanation for the delay in filing their petition, the appellants herein did not give any reasons in their affidavits, for the delay in filing their petition. Instead, an attempt was made by the appellants’ advocate to explain the delay in the written submissions. But of course, written submissions are mere arguments postulated by counsel, which cannot pass for proven facts. Moreover, assuming that we were to take judicial notice of the fact that the appellants could not bring their claim during President Moi's regime, there is no explanation given as to why the claim was not filed immediately after the impugned President Moi left power after the 2002 elections.*** ***In Peter M. Kariuki v Attorney General (supra), the Court in addressing a delay of 23 years in bringing a claim similar to that of the appellants stated as follows:*** ***We have already adverted to the fact that the appellant filed his constitutional petition some twenty three [23] years after his conviction by the court martial. We agree with the trial court that his claim was not time barred. However, the consequence of the appellant's delay in lodging his claim was some level of prejudice to the respondent who contended that the matters complained of by the appellant had taken place a while back and many of the actors were no longer available as witnesses. We have already emphasized that the right to a fair trial must be accorded to both the appellant and the respondent.*** ***In KAMLESH MANSUKLAL DAMJI PATTNI & ANOTHER V REPUBLIC (supra), the High Court noted that the Constitution did not set a time limit within which applications for enforcement of fundamental rights should be brought. Nevertheless, the court added that, like all other processes of the court, it is in public interest that such applications be brought promptly or within a reasonable time, otherwise they may be considered an abuse of the process of the court. We respectfully share that view, with the rider that where there has been delay which is likely to prejudice a respondent, the applicant should account for the delay.*** 1. Further reliance was placed in the case of **Wellington Nzioka Kioko -v- Attorney General, Civil Appeal No. 268 of 2016, (2018) eKLR,** the Court of Appeal stated as follows:- ***The common thread running through those decisions is that whereas there is no time limitation in respect of constitutional petitions, the delay must not be inordinate and there must be plausible explanation for the delay. The learned Judge found that no justification for the delay of over 3 decades had been given in this matter. Can the Judge be faulted for that? We need to look at the logic behind limitation of actions generally in order to place this issue in proper perspective. 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 redress will be sought before the claim gets stale. This enables a person to preserve and adduce the 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 sometimes transient and it is important that a person adduces evidence when the memory of the incident complained of is still intact. There is also this idea of people moving on in life. If somebody wrongs you, you need to seek redress when the offending act still has an impact on your life, and when the evidence necessary to prove the wrong is still available. There is also the converse situation where the alleged wrongdoer should know that there is a claim against him which he needs to remedy. 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 might be made at a time when the offending party has forgotten about the incident and is no longer in a position to defend himself. There is of course a rebuttable presumption that if you don't seek redress within a reasonable time, there is a possibility that you have not suffered any loss from the act complained of .That would explain the maxim that equity does not aid the indolent.*** 1. The respondents argued that there were no perceptible reasons offered by the petitioners to merit a delay of 40 years. They further submitted that the unfathomable advertent delay disadvantaged them in putting up a more plausible defence and that their case was prejudiced by the fact that the Courts Martial proceedings were destroyed pursuant to section 114 of the Armed Forces Act (now repealed) and Rule 97 of the Armed Forces Rules of Procedure. Furthermore, any member of the Kenya Armed Forces (now Kenya Defence Forces) that would have been witness of the events of the attempted 1982 coup was either retired or deceased. Reliance was placed in the case of **Gilbert Guantai Mukindia -v- Attorney General, Petition No.118 of 2014, [2019] eKLR,** the court observed: ***While it is the law that constitutional petitions are not strictly saddled by the statutes of limitation specially where violation of rights are alleged with persisting damage to the individual, it is also good law that even constitutional litigation ought to be presented with some promptitude so that evidence is not lost on account of passage of time. That is critical because expeditious disposal of legal disputes is the other way to underscore the mantra that justice delayed is justice denied. Where, however, there is admitted delay like in this case, where it took the petitioner a period in excess 32 years to bring the petition, it behoves such a petitioner to offer an explanation for the delay. Such explanation must be to the satisfaction of the court as plausible. In Lt Col Peter Ngari Kagume & 6 others -v- Attorney General [2016] eKLR, the Court of Appeal observed: "... the learned trial judge correctly observed that none of the appellants proffered any explanation for the delay of 24 years in coming to court. Whichever way one looks at it in the circumstances of this appeal, the delay spanning 24 years was inordinate. The appellants slept on their rights. We are unable to find fault in the findings made by the learned judge that in absence of a plausible explanation for delay, the suit amounted to abuse of the court process. On this ground also, the appeal would fail.*** ***In this matter the delay between the date of release, October 1982, to the 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 Applic No. 1411 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 between 1982 to 2002, a better explanation was expected for 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 the need/or 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 that 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 **Hezron Ndarera Onchiri -v- Attorney General Petition No. 372 of 2016, [2020] eKLR** where the court held:- ***It should be observed from the outset that the Petitioner has not offered any explanation in his pleadings for the delay in filing the petition. His attempt to do so through submissions adds no value because submissions are not pleadings. See -Daniel Torotich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR.*** ***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.*** ***The Petitioner also submitted that he was a party to two other cases. There was no explanation about the outcome of those cases and no explanation was offered as to why the Petitioner sued again having sued the Respondent earlier.*** ***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.*** ***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. On the second issue, the respondents submitted that the petitioners had failed to prove the allegations of violation of their rights and freedoms, when they occurred, how and who allegedly violated their fundamental rights and other than their own words, failed to provide any corroboration through documentary or medical evidence contrary to Section 107 of the Evidence Act. Reliance was placed in the case of **Evans Otieno Nyakwana -v- Cleophas Bwana Ongaro, Civil Appeal (Homabay) No. 7 of 2014, [2015) eKLR** where the court held:- ***….As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purpose of section 107 (1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:*** ***107. (1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist ...*** 1. Further reliance was placed in the case of **Susan Mumbi-v- Kefaia Grebedhin, Nairobi HCCC. No. 332 of 1993** where Justice Juma stated:- ***The question of the court presuming adverse evidence does not arise in civil cases. The position in civil cases is that whoever alleges has to prove. It is the plaintiff to prove her case on a balance of probability and the fact that the Defendant does not adduce any evidence is immaterial.*** 1. Similarly in**John Cheruiyot Rono -v- Attorney General, Petition No. 536 of 2015**, 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 -v-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...*** ***With regard to torture, the Petitioner made wild and unsubstantiated claims that he was beaten and forced 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 and I will not consider it any further as nothing presented to the court fell close to showing that there was prohibited torture which is basically, an infliction of physical suffering or threat to inflict such suffering meted to the Petitioner. One may blame it on lapse of time but yet again the burden was on the Petitioner. I am unable to find that the Petitioners right to freedom from torture was violated for lack of evidence.*** 1. The respondents submitted that the constitution didn’t define "torture" or "inhuman" or degrading punishment" and relied on the definition in the Black's Law Dictionary, 8th Edition which provided that:- ***“…"Inhuman treatment” is defined in reference to family law as 'physical or mental cruelty so severe that it endangers life or health' while "torture” is defined as 'the infliction of intense pain to the body or mind to punish to extract a confession or information or to obtain sadistic pleasure.'*** 1. The respondents cited Article 1 of the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment and argued that going by the definitions of torture, the petitioners failed to discharge the burden of proof bestowed upon them, and urged the court ought to find that there were no acts of torture as recognized by law committed against them. Reliance was placed in the case of **Monicah Wangu Warn were -v- Attorney General (2019) eKLR** where the Court of Appeal 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. The respondents argued that the petitioners failed to tender adequate evidence to prove their allegations on a balance of probabilities that their fundamental rights and freedoms were violated. The allegations made by the petitioners were false and mere fabrications intended to mislead the court and as such they should be held in contempt. 6. On the third issue, the respondents submitted that the petitioners' details regarding their arrest and alleged illegal pre-arraignment confinement were scanty and unclear. Further, the petitioners made allegations of coercion to plead guilty without giving particulars of the purported coercion. They failed to identify the counsel they alleged who misled them to plead guilty for favourable rulings in their trials. The respondents cited the case of **Lt Col Peter Ngari Kagume & Others -v- Attorney General (supra),** where Nyamu J. held that when a party alleges and the rival side disputes, the person alleging assumes the burden of proving the allegation and it is thus incumbent upon the petitioners herein to avail tangible evidence of rights and freedoms violation duly claimed. 7. In regards to the allegations that the Petitioners were subjected to inhumane treatment in prison, the respondents submitted that it has been ruled that Kenyan prisons are generally in deplorable states and therefore that does not amount to inhumane treatment for a prisoner to serve his lawful term in the same situation amid the government's efforts to improve standards. Reliance was placed in the case of **Koigi Wamwere -v- Attorney General, Petition 737 of 2009, [2012] eKLR,** where the court held:- ***I have set out in detail some of the averment of the petitioner with regards to what he considers to be acts of torture committed against him by state and state agents during his detention and incarceration in his two trials. Weighed against the definition of torture set out above, I must regretfully find that there were no acts of torture as recognized in law committed against the petitioner during his detention in prison. What the petitioner was subjected to was the same deplorable conditions to which other prisoners in Kenya are subjected to. The poor diet, lack of adequate medical and sanitation facilities, lack of an adequate diet, have been hallmarks of prisons in Kenya. The discriminatory regulations that the petitioner refers to, if they were indeed in force as the petitioner avers, are doubtless a carry-over of discriminatory, colonial regulations which independent Kenya inherited and has not seen fit to question and change. To find that the poor prison conditions amount to torture which entitles the Petitioner to compensation would open the door for similar claims by all who have passed through the Kenya prison system. Looked at against the definition of torture, however, I find and hold that there was no violation of the petitioners' rights under section 74 with regard to the above instances cited as illustrations of torture he was subjected to while in detention.*** 1. The respondents argued that proceedings in public law are special proceedings and as such the petitioners would have to prove their case beyond a balance of probabilities on the allegations they brought before the court. Reliance was placed on the case of **Peter Ngari Kagume & Others -v- Attorney General (supra):** ***.. When the court is faced by scenario where one side alleges and the rival side disputes, the one alleging assumes the burden to prove the allegation.......*** 1. The respondents argued that the petitioners had not discharged the burden of proof to warrant grant of the orders sought and that the general statements by the petitioners did not hold any probative value. Further reliance was placed in the case of **Lt. Col. Peter Ngari Kagume & Others vs. Attorney General (supra),** where the court stated that:- **….*the petitioners did not provide such evidence except the averment of what transpired to them ....the court is deaf to such speculations and imaginations and must be guided by evidence of probative value ...*** 1. Similar reliance was placed in the case of **Fredrick Gitau Kimani -v- The Honourable Attorney General & 2 Others, Petition 157 of 2011, [2012] eKLR,** Justice Lenaola(as he then was) held that he who alleges must prove; where a person makes a claim but fails to show in satisfactory manner the facts upon which he bases his claims, the respondent is under no obligation to prove his defence or exception. 2. The respondents submitted that the discharge of the petitioners from service was lawful as the applicable law, to wit Section 103 of the Armed Forces Act (now repealed), provided for various sentences and punishments for service personnel including dismissal from service. Further, the Armed Forces Act (now repealed) at Section 176(g) empowered the competent service authority to discharge service members if for any reason the member’s services are no longer required. Thus, they therefore discharged their duties procedurally, fairly and with strict adherence to the laws. 3. On the issue of unlawful dismissal, the respondents submitted that the said issue is an enclave of the Employment and Labour Relations Court and as such the best forum to address it was the said court. 4. On the final issue of quantum, the respondents cited the case of **Lt. Col. Peter Ngari Kagume & Others -v- Attorney General (supra)** at page 37 where it was stated that:- ***.... If there is any remedy in addition to damages, that other remedy should usually be granted initially and damages should only be in addition if necessary to afford just satisfaction.*** 1. The respondents further relied on the case of **Charles Gachathi Mboko -v- Attorney General, HCCC 833 of 2009, [2014] eKLR,** where the learned Judge stated, ***... that the court has been lenient on parties that seek redress for violation of fundamental rights in past political regimes, that it indulges in being abused by parties that have slept over their rights and give no serious explanations for the delay. Thus, the court that context that in awarding the petitioner takes account that the authorities he relies on were awarded in 2004 - 2009, the petitioner should have taken steps to seek redress for his alleged violations without inordinate delay.*** 1. The respondents argued that because the petitioners failed to prove any violations of any of their respective rights and fundamental freedoms, they were not entitled to any damages or compensation as claimed. **Analysis and Determination** 1. Having carefully considered the pleadings, the testimonies of the witnesses and the submissions made by both sides, I find following to be the issues for determination: 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 and reliefs sought.*** ***Whether there was inordinate delay in filing the petition*** 1. Prolonged or inordinate delay in asserting one’s legal right, particularly delay that is unexplained or unjustified could extinguish a legal right on the part of the party at fault, not because of the delay itself, but because of the serious prejudice such delay might have had on the opposing party. Consequently, a Party is required to ensure that their claims or legal rights are pursued within a reasonable time. Failure to do so might have serious lead to adverse consequences on the part of the party seeking a remedy, hence the equity maxim **“delay defeats equity, or, equity aids the vigilant, not the indolent**.’’ 2. The Court must however scrutinize each and every case keenly whenever opposition to the trial on account of delay is raised. An examination of the length of the delay in question, the nature of reason (s) that is/are given for the delay including whether the adverse party may have played a role, and the implication of such delay in regard to the fair trial of the issues in question against the adverse party is paramount. The question that the Court must ask and answer based on the facts on record is whether despite the delay, can the opposing party reasonably participate and properly defend the case against it fairly? The interrogation is necessary because the Court has to strike a proper balance between the right of a party to access justice and the constitutional principle that litigation must be conducted in an objectively fair manner to all the parties, what is generally referred to as the ‘equality of arms.’ 3. The general principle which is established in judicial precedents is that there is no limitation of time for claims arising from violation of the Constitutional rights. However, as held by the Court of Appeal in **James Kanyiita Nderitu v Attorney General & Director of Public Prosecution [2019] KECA 1006 (KLR)** while affirming the principle that there is no limitation of time in constitutional petitions, it added an important rider that unexplained inordinate delay that causes injustice to the adverse party could also defeat a constitutional claim on grounds that it is an abuse of the court process. The Court stated thus: - ***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. Moreover, in **Hezron Ndarera Onchiri v Attorney General [2020] KEHC 9453 (KLR),** the Court after interrogating the reasons for the delay stated thus: ***“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. Further 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. The petitioners in their petition attributed the delay in filing the petition to the fact that they were afraid of filing this suit during the late President Moi’s regime as they believed his influence on the state organs was still entrenched. They further argued that it is only after President Moi’s death in February 2020 that they gained the confidence that they could access justice for the violation of their rights. 2. On cross examination as to why they did not bring the said petition after the promulgation of the present Constitution during the President’s Mwai Kibaki’s era, they stated that they lacked finances. 3. This court takes judicial notice that there was a fundamental shift in political environment after the 2002 elections. The retired President Moi’s regime ended around 2002. Afterwards, in the year 2008, a commission known as Truth Justice and Reconciliation Commission was set up to among others, investigate of 2007 election violence and all past incidents of violation of human rights abuses including torture at the infamous Nyayo House torture chambers. Thus, the petitioners claim that they were apprehensive of filing this Petition for fear of reprisals and had to wait for the late President Moi to dies in 2020 so as to file the suit in 2022 is not a genuine reason in the considered view of this Court. 4. Further, I find the Petitioners’ assertion that they were unable to file the suit for over forty years due to lack of finances to be a lame excuse that is totally unpersuasive. The rules of this Court clearly allow filing of suits by indigent persons (paupers) and the Petitioner have not demonstrated that in the forty or so years, they made any effort to utilize this procedure and they were obstructed. The plea of poverty that they now make is an afterthought and is in my view unsatisfactory to explain the inordinate delay. 5. The respondents have demonstrated that after such a long period, it is difficult to secure or trace eye-witness who can testify to these events or records to effectively defend themselves against the accusations. In any case, while the petitioners claimed that they were incarcerated and tortured, even they, the petitioners, were unable to produce any documentary confirmation in support of the said confinement to corroborate their oral testimonies. 6. The Respondents have ably demonstrated the prejudice. The documents they would have referenced and relied cannot be found or have been lawfully destroyed pursuant to Kenya Defence Forces Standing Orders which are reviewed and destroyed after seven years. Proceeding with this Petition will thus not promote fairness and in the interest of justice. 7. I find that there was inordinate and inexcusable delay on the part of the Petitioners in instituting the Petition. 8. Consequently, the Petition is hereby dismissed. I make no orders as to costs. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF SEPTEMBER, 2026.*** ***……………………………………..*** ***L N MUGAMBI*** ***JUDGE***