[2014] KEHC 8075 (KLR)

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.184 OF 2011

Consolidated with Petition No.183 of 2011

BETWEEN

JOHN MICHUKI MAINA…..................................................1ST PETITIONER

PAUL KAMAU WAWERU..................2ND PETITIONER

AND

THE HON. ATTORNEY GENERAL ……………….........…….....RESPONDENT

JUDGMENT

Introduction

The 1st Petitioner, John Michuki Maina, is the Petitioner in Petition No.184 of 2011 and the 2nd the Petitioner, Paul Kamau Waweru, is the Petitioner in Petition No.183 of 2011. They filed their respective Petitions seeking certain orders for their alleged arrest and confinement at different police stations and later incarceration at Nyati House and Nyayo House Torture Chambers. They claim in that regard, violation of their constitutional rights under Sections 72(1), (2) (3) and (5), 74(1), 77(1), 79(1) 80(1) and 82(3) of the Repealed Constitution.

The Petitioners' Case

In his Affidavit sworn on 22nd August 2011, the 1st Petitioner claimes that he was arrested on 7th July 2001 by an Inspector of Police at the Kamukunji Grounds where he had organized a political meeting to be held that day. He was then allegedly thrown into a police van and rushed to Shauri Moyo Police Station where he was locked up and beaten mercilessly. Thereafter, he was taken to Industrial Area Prison where he was held in a cold cell without food, a blanket or a sleeping mat for two days. He was later blindfolded and forcibly tossed into a car boot and driven for two and half hours and that when the car stopped, he realised that he was in the basement of Nyati House in Nairobi. He was confined in a cell at Nyati House without food, sleeping mat, blankets or drinking water and in a cell which was waterlogged with cold water. He was at some stage ordered to strip naked and was subjected to merciless physical torture by police officers who slapped, kicked and beat him with rubber whips and broken chair pieces. On 23rd July 2001, he claims that he was blindfolded and forcibly bundled into a car and driven for about two hours to Kayole where he was freed unconditionally. He claimed that between his arrest and release, he was also held incommunicado. That as a result of his confinement, he has suffered physically, psychologically and economically due to immense loss of earnings. He further claims that he still suffers from high blood pressure and severe headache as a result of his ordeal.

The 2nd Petitioner, Paul Kamau Waweru, in his Affidavit sworn on 22nd August 2011 stated that he was arrested on 11th March 1987 at his Ngumo home by an Inspector of Police from North Kingangop Police Station who claimed that he had been ordered by the Special Branch Police Department to procure his arrest. He was taken to the Deputy Provincial Criminal Investigation Officer in Nairobi where he was interrogated for five hours. Then he was taken to Muthangari Police Station, Kileleshwa Police Station, Makongeni Police Station, Langata Police Station and Karen Police Station at various intervals. He claimed that while in those police stations, he was held in the cells without decent food, blankets or sleeping mat for 17 days and that he only received a piece of bread and tea once a day. Thereafter, he was blindfolded and forcibly tossed into a car boot and driven for two and half hours to a place he later realised was Nyayo House. He was then confined to a cell in the basement of that building where he was locked for 14 days without decent food. He claimed that his cell was also waterclogged with cold water.

That he was blindfolded on 8th April 1987 and taken to the 27th floor of Nyayo house where he was paraded before a panel of interrogators who interrogated him on his alleged links with the proscribed'Mwakenya' movement. While at it, he was ordered to strip naked and was periodically thrown into a water logged cell where cold and hot pressurized water would be sprayed on him at intervals. He was allegedly tortured in the same manner for all the days that he was held at Nyayo House.

On 11th May 1987, he was blindfolded and forcibly bundled into a car and driven for about one and half hours to the area around the Department Of Defence headquarters where he was freed and left without money. He claims that between his arrest and release, none of his family members knew where he was as he was held incommunicado. He further claims that he continues to suffer emotionally, physically and psychological and economically as a result of what he went through in the hands of agents of the State. The Petitioners therefore seek the following reliefs;

The 1st Petitioner

“(a) A declaration that his fundamental rights and freedoms were contravened and or grossly violated by the Respondent's Special Branch Police Officers who were Kenyan Government servants, agents, employees and in its institutions on 7th July 2001 and in vrious police stations and thereafter at Nyati House Torture Chambers.

(b) A declaration that the Petitioners are entitled to the payment of damages and compensation for the violation and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the Constitution.

(c) An award of general damages, exemplary damages on an aggravated scale under Section 84(2) of the Constitution of Kenya for the unconstitutional conduct by the Kenyan Government servants and agents.

(d) Any further orders, writs, directions of this Honourable Court may deem fit and just to grant

(e) Costs of the suit plus interest from the date of filing of the Petition.”

The 2nd Petitioner

“(a) A declaration that his fundamental rights and freedoms were contravened and or grossly violated by the Respondent's Special Branch Police Officers who were Kenyan Government servants, agents and/or employees in its institutions on 11th March 1987 and for 31 days at various Police Stations and thereafter at Nyayo House Torture Chambers.

(b) A declaration that the Petitioner is entitled to the payment of damages and compensation for the violation and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the Constitution.

(c) General damages, exemplary damages and moral damages on an aggravated scale under Section 84(2) of the Constitution of Kenya for the unconstitutional conduct by the Kenyan Government its agents and/or servants be awarded.

(d) Any further order, writs, directions as this Honourable Court may consider appropriate.

(e) Costs of the Petition and interest.”

The Respondents case

The Respondent's case is contained in his written Submissions dated 30th April 2013. The Respondent urges the Court to dismiss the Petitions because he calls the same, stories mere-fabrications meant to attract unmerited damages. He attacks the Petition on facts although he filed no response to the Petitioners' contentions. On the law, it is his submission that the rights alleged to have been violated were limited and are not absolute and therefore that the alleged action of the agents of the State cannot amount to a violation.

On the documents submitted by the Petitioners in evidence, the Respondent attacks their authenticity arguing that the Kenya Revenue (KRA) stamps affixed on them could not be true as KRA was established in 1995 way after the alleged violations. He also attacks the veracity of the medical reports for reasons that they were not corroborated by a medical expert. He claims further that it is difficult to make a connection between the alleged torture and the Petitioners' present medical conditions as alleged.

It is the Respondent's further position that the Petitioners had failed to prove that they were tortured and that a party who alleges a fact bears the burden of proving that fact. He relies on the case of Col. Peter Ngari Kagume & Others v Attorney General Const. Applic No. 218 of 2006 where the Court held that he who alleges torture assumes the burden of proving that fact.

He urges the Court to put an end to the torture claims arising out of the infamous Nyayo House torture chambers as greedy persons were cashing in on them. Further, applying the reasoning in Col. Peter Ngari Kagume (supra), he stated that it was not enough for the Petitioner to claim that they could not bring this suit without inordinate delay due to fear without showing the efforts they made in enforcing their fundamental rights and freedoms in good time.

In regard to the relief applicable, the Respondent urged the Court to be guided by the Col. Peter Ngari Kagume (supra) and award damages as the only relief. That the quantum in any event should be moderate and on the lower side compared to other awards in similar cases in the past. He therefore proposed a quantum of Kshs.1,000,000 in the event the Court found merit in the Petitioners' cases.

Determination

The Respondent has generally denied the allegations made against him by the Petitioners but in a mater such as this one, it is not enough to generalise the defence and deny the allegations made without leading any evidence that would controvert the averments of facts by the Petitioners. Infact although the Respondent cross-examined the Petitioners, nothing useful came out of the cross examination in regard to the veracity of their testimony. In the circumstances and in the absence of any evidence by the Respondent, the Court takes the position that the facts are as presented and the case made by the Petitioners remains unchallenged on the facts. With that in mind, I now proceed to examine those facts and which are set out above before determining whether they disclose any violation of the Petitioners' Fundamental Rights and Freedoms as alleged.

Right to liberty

The 1st Petitioner was arrested on 7th July 2001 and released on 23rd July 2001. He was therefore held in custody for 17 days and it s clear that he was never arraigned in Court. The 2nd Petitioner on his part was arrested on 11th March 1987 and released on 11th May 1987. He was therefore held in custody for 61 days. Like the 1st Petitioner, he was never arraigned in Court.

Section 72(3) of the former Constitutionprovided as follows:

“(3) A person who is arrested or detained –

(a) for the purpose of bringing him before a Court in execution of the Order of a Court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a Court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death. The burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.”

In the present case, the Petitioners were suspected of having committed an offence that did not carry the death penalty. I say so because it seems that their only mistake was the holding of political views that were contrary to those held by the regime of the day and none of them was told that he had for example committed the offence of treason. Consequently, under the provisions of the Repealed Constitution as set out above, they should have been charged in Court within 24 hours of their arrest. Flowing from the Petitioners' own testimony which is uncontested, I find a violation of their rights under Section 72 of the Repealed Constitution following their arrest and detention at the various police stations mentioned above and eventually at Nyati House and Nyayo House, respectively.

Protection from torture

The Petitioners allege that while in custody at the cited police stations as well as at Nyati House and Nyayo House, they were subjected to acts of torture, cruel and degrading punishment. In that regard, Section 74 (1) of the Repealed Constitution provide that;

“No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”

I have elsewhere above given in some details the alleged acts of torture that they were subjected to which included being held in a dark room with a light bulb that was on throughout; being blindfolded; being kept naked; being hit using sticks and whips; cold water being poured into the cell they were held in and being forced to sleep on a cold floor without blankets. These acts i.e. being held in dark room, blindfolded while naked, being whipped with sticks and whips have been held by the High Court in the cases of Harun Thungu Wakaba & Others v The Attorney GeneralNairobi HC. Misc. Appl.1411 of 2009(OS);Wachira Waheire v The Attorney GeneralNairobi HC Misc.1184 of 2003(OS), Rumba Kinuthia & Others v The Attorney General,Nairobi HC Misc. Appl. No.1408 of 2004 and Cornelius Akelo Onyango & Others v The Attorney GeneralNairobi HC. Misc.233 of 2009 (Unreported) as amounting to torture, cruel and degrading treatment and I agree with those decisions. I say so because the facts are similar and I see no reason to reach a different conclusion in the present case.

I therefore find and hold that the Petitioners were subjected to torture , cruel and degrading treatment in violation of their rights under Section 74(1)of the Repealed Constitution.

Right to fair hearing

The Petitioners allege that their rights under Section 77 of the Repealed Constitution were violated by the Respondent for denying the Petitioners due protection of the law and forming an opinion that they had committed a crime when none had been committed. That they were therefore denied the right to a fair trial. Section 77 of the Repealed Constitution provided as follows:

“If a person is charged with a criminal offence, then, unless the charge is withdrawn the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

In interpreting the above Section, the Court of Appeal in the case of Julius Kamau Mbugua -v-Republic Criminal Appeal No 50 of 2008 (unreported) held thatSection 77 protected rights in the course of the trial and not before the trial. In that regard, the Petitioners in the instant case were never arraigned in Court at any time. In the circumstances there cannot be violation of the rights set out under Section 77 of the Repealed Constitutionand I so find.

Freedom of Expression and Freedom of Assembly and Association

The Petitioners further allege that their rights underSection 79(1) of the Repealed Constitution were violated by the Respondent. This Section provided as follows;

“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.”

From the facts before me, the 1st Petitioner was arrested at Kamukunji Grounds where he, together with other politicians, was attending a rally in commemoration of the Saba Saba Movement. As can be seen from a plain reading of Section 79(1)of the Repealed Constitution, the Petitioner had the freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons).

In the present case and applying the above law to the facts, save for the fact that he was arrested at a political rally and detained for 17 days, it is unclear to me how the above right was violated. The 1st Petitioner said nothing of it in his Affidavit and in oral evidence and although it is a fact that he may have had differing political news, I see no evidence that he was denied the right to express himself. During his incarceration, the right may well have been denied but I cannot make a presumption of that fact. I agree with the Respondent's submission that the facts as pleaded must point to a violation and on this issue, they do not do so.

I am consequently unable to find that the rights under Section 79(1) aforesaid was violated.

In regard to the Freedom of Assembly and Association, Section 80(1) provided as follows;

“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests”.

From the facts before me and flowing from what I have stated above, I find a violation of the 1st Petitioner's right to freedom of assembly and association. I say so because he was arrested while he was at Kamukunji Grounds attending a political rally and he was whisked away in clear violation of his right to assembly and associate with others.

Having so said, from the facts pleaded by the 2nd Petitioner, I am unable to find a violation of the freedom of Association or expression as was provided for under Section 79(1)of the Repealed Constitutionand the reason is obvious; he never gave me any evidence to make a finding in his favour.

Damages

It is now settled law that a party whose constitutional rights are found to have been violated by the State is entitled inter-alia to damages and the High Court has said so in line with Section 84 of the Repealed Constitution. The quantum of damages is in the discretion of the Court, taking into account the nature of the violations. In the present circumstances, the Petitioners are entitled to damages in respect of the violations that have elsewhere above been enumerated.

The High Court has awarded damages for violation of constitutional rights in a number of torture cases that have come before it. In the case of Haruni Thungu Wakaba -v- The Attorney General Misc Appl. No. 1411 of 2004, Okwengu J, awarded the Petitioners who were incarcerated and had their rights violated, general damages for each of the 20 Petitioners ranging from Kshs.1,000,000 and Kshs. 3,000,000. 00. In the case of Rumba Kinuthia –v- Attorney General (supra),Wendoh J. also made an award of Kshs.1,500,000. 00 as general damages for violations in similar circumstances.

The Petitioners in this case have also sought exemplary and moral damages for the violation of their rights by agents of the Kenyan State but this Court has generally declined to award exemplary damages in addition to general damages for violations as they amount to violation of constitutional rights in the same set of transaction - See Benedict Munene Kariuki and 14 Others -v- the Attorney General High Court Petition No.722 of 2009, Dominic Arony Amolo-v- Attorney General – High Court Misc. Appl. No. 494 of 2003. Further, exemplary damages cannot be awarded in changed political circumstances.In that respect a global award in respect of all the violations is most appropriate in the circumstances.

In light of the awards made in similar cases as set out above, and taking into account the 17 days of torture endured by the 1st Petitioner and the 61 days by the 2nd Petitioner, the health complications each has suffered, (I have seen the medical reports of each of the Petitioners but the import of those report in connection with the alleged acts of torture was never mentioned in the pleadings, oral hearing or written submissions) and doing the best I can in the circumstances, I make a global award of Kshs.800,000. 00for the 1st PetitionerandKshs. 2,000,000. 00for the2nd Petitioner.

The Petitioners shall also have the costs of the Petitions plus interest on damages from the date of judgment until payment in full.

Final orders

From the foregoing, the final orders to be made are the following;

In Petition No.184 of 2011

“(a) A declaration is hereby made that the Petitioner's fundamental rights and freedoms were contravened and or grossly violated by the Respondent's Special Branch Police Officers who were Kenyan Government servants, agents, employees in its institutions on 7th July 2001 and in vrious police stations and thereafter at Nyati House Torture Chambers.

(b) A declaration is hereby made that the Petitioner is entitled to the payment of damages and compensation for the violation and contraventions of his fundamental rights and freedoms under the provisions of Sections 72(3), 74(1) and 80(1) of the Repealed Constitution.

(c) An award of general damages in the amount of Kshs.800,000. 00 is made under Section 84(2) of the Repealed Constitution of Kenya for the unconstitutional conduct by the Kenyan Government servants and agents.

(d) Any further orders, writs, directions of this Honourable Court may deem fit and just to grant

(e) Costs of the suit plus interest from the date of filing of the Petition.”

In Petition No.183 of 2011

“(a) A declaration is hereby made that the Petitioner's fundamental rights and freedoms were contravened and or grossly violated by the Respondent's Special Branch Police Officers who were Kenyan Government servants, agents and/or employees in its institutions on 11th March 1987 and for 31 days at various Police Stations and thereafter at Nyayo House Torture Chambers.

(b) A declaration is hereby made that the Petitioner is entitled to the payment of damages and compensation for the violation and contraventions of his fundamental rights and freedoms under the provisions of Sections 72(3) and 74(1) of the Repealed Constitution.

(c) A award of general damages in the amount of Kshs.2,000,000. 00 is hereby made exemplary damages and moral damages on an aggravated scale under Section 84(2) of the Constitution of Kenya for the unconstitutional conduct by the Kenyan Government its agents and/orservants be awarded.

(d) Costs of the Petition and interest.”

Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 4TH DAY OF JULY, 2014

ISAAC LENAOLA

JUDGE

In the presence of:

Kariuki – Court clerk

Mr. Okindo for Petitioner

Mr. Wamotsa holding brief for Miss Irari for Respondent

Order

Judgment duly delivered.

ISAAC LENAOLA

JUDGE