https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12896

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NOE488 OF 2026** **BERNARD KAVULI…………………………………………….........1ST PETITIONER** **JAMIL HASHIM LONGTON. ……………………………….………..2ND PETITIONER** **NADIM ASLAM LONGTON…………………………………………...3RD PETITIONER** **BOB NJAGI…………………………………………………………..4TH PETITIONER** **BILLY MWANGI……………………………………………………..5TH PETITIONER** **PETER MUTETI……………………………………………………..6TH PETITIONER** **GIDEON KIBET………………………………………………………7TH PETITIONER** **RONNY KIPLANGAT…………………………………………….......8TH PETITIONER** **MAURICE WAMBUA…………………………………………….......9TH PETITIONER** **RAJAB MOHAMED…………………………..……………………..10TH PETITIONER** ***(all suing as members of the Coalition of Victims & Survivors Against State Violence)*** **VERSUS** **PROF MAKAU MUTUA (*being sued as the Chairperson of the Panel of Experts*** ***on the Compensation of Victims of Human Rights Violations, including from Demonstrations and Public Protests*) ..................................................................1ST RESPONDENT** **THE PANEL OF EXPERTS ON COMPENSATION OF** **VICTIMS OF HUMAN RIGHTS VIOLATIONS, INCLUDING** **FROM DEMONSTRATIONS AND PUBLIC PROTESTS………………..2ND RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL…………………...........3RD RESPONDENT** **AND** **KENYA NATIONAL COMMISSION ON HUMAN RIGHTS..........1ST INTERESTED PARTY** **INDEPENDENT POLICING OVERSIGHT AUTHORITY............2ND INTERESTED PARTY** **LAW SOCIETY OF KENYA…………………………………..3RD INTERESTED PARTY** **R U L I N G** **Introduction** 1. In their Petition dated 21st July 2026, the Petitioners stated that they were abducted and subjected to enforced disappearances during demonstrations and public protests in the Republic of Kenya. They averred that they were duly registered, documented, and verified, and that the 1st and 2nd Interested Parties obtained their consent, as indicated in the report on the Development of a Framework for the Reparation of Victims of Human Rights, Including Demonstrations and Public Protests that was presented to the President of the Republic of Kenya by the 1st Interested Party on 15th June 2026. 2. The said Report documented 1815 claims and verified 1,101 victims across categories of violations, including the right to life (245), sexual violence (75), torture (135), freedom and security of the person (473), property rights (138) and enforced disappearances (35). Notwithstanding the contents of the said report, the Petitioners stated that they were unlawfully omitted from the categories of harm eligible for the compensation and reparation process currently underway. 3. The Government of Kenya allocated Kes 2,000,000,000/- for the compensation of the victims. Disbursement began on 23rd June, 2026, when Kes 448,700,000/- was disbursed to 348 victims. A further disbursement was made on 3rd July 2026, when Kes 674,100,000/- was disbursed to 157 victims. At the time of filing the Petition, the Petitioners reckon that Kes 1,122,800,000/- had been disbursed to 505 victims. 4. The petitioners averred that they, as victims of abductions and enforced disappearances, were omitted from the list of harm, “despite their being 35 victims who had been verified and consents obtained by the 1st and 2nd Interested Parties, as was indicated in the report.” They reckoned that the Respondents had unlawfully introduced a superfluous authentication process as a precondition for compensating victims of abductions and enforced disappearances, which, in their view, was ultra vires, unconstitutional, and a direct contravention of the Terms of Reference prescribed under Presidential Proclamation No. 1 of 2026. 5. The petitioners stated that the omission of victims of abductions and enforced disappearances was not an administrative oversight but a calculated, selective implementation of the Report, “*which undermines the integrity of the reparation process, violates the principles of equal justice, and constitutes a grave violation of the Petitioners’ constitutional rights.*” 6. The Petitioners were apprehensive that the compensation process may be concluded to their exclusion. They noted that Kes.1,122,800,000/- had been paid so far, out of the total compensation allocation of Kes.2,000,000,000/-. They averred that the Respondents' term of office is limited, initially set at 90 days from 6th March, 2026. Although there was an extension, the extended period shall lapse on 5th September 2026, with no guarantee of further extension. The Petitioners averred in their Petition that their exclusion constitutes an ongoing violation of their right to human dignity, equality and freedom from discrimination, guaranteed under Articles 10, 27 and 28 of the Constitution of Kenya, 2010. 7. The Petitioners therefore sought declaratory reliefs as well as orders of certiorari and mandamus. **Notice of Motion dated 21st July, 2026** 1. The Petitioners filed, simultaneously with the Petition, a Notice of Motion application dated 21st July 2026, vide which they seek the following orders: 2. ***Spent;*** 3. ***Spent;*** 4. ***Spent;*** 5. ***THAT the Honourable Court be pleased to issue an order directing the Respondents to, within 7 days, furnish the Petitioners with the names of the 35 verified victims of enforced disappearances, as contained in the “Report on the Development of a Framework for the Reparations for Victims of Violations of Human Rights, Including Demonstrations and Public Protests,” of the 1st Interested Party;*** 6. ***THAT pending the hearing and determination of the Petition, a conservatory order do and is hereby issued suspending the 1st and 2nd Respondents, whether acting by themselves, their agents, representatives, and/or all other officers subordinate to them, from proceeding with, finalizing and/or concluding the compensation and reparation exercise in respect of victims of state violence, in compliance with Presidential Proclamation No. 1 of 2026;*** 7. ***THAT pending the hearing and determination of the Petition, a conservatory order do and is hereby issued restraining the 1st and 2nd Respondents from implementing, applying, or acting upon the purported "authentication process," introduced by the Respondents for the verification of victims of torture and enforced disappearances, in compliance with Presidential Proclamation No. 1 of 2026; and*** 8. ***THAT costs of this application be provided for.*** 9. The grounds upon which the conservatory orders are sought are set out in the body of the Motion and in the affidavit of Bernard Kavuli, sworn on 21st July 2026. In those grounds and the deposition, it is stated that the compensation process was ongoing and that, to date, 505 victims had been compensated, with Kes.1,122,800,000/- already paid out. The deponent averred that on 25th June 2026, the Coalition of Victims and Survivors against State Violence released a statement expressing disappointment at being omitted by the 1st and 2nd Respondents from the categories of harm, despite 35 victims of abductions and enforced disappearances having been verified. He deprecated the respondent's decision to introduce an “authentication process” as a precondition for compensation for victims of torture and enforced disappearance, stating that it was ultra vires, unconstitutional, and a direct contravention of the Terms of Reference prescribed under Presidential Proclamation No. 1 of 2026. 10. Mr Kavuli deposed that the unilateral imposition of additional authentication requirements constituted a derogation from and subversion of the Report’s Implementation, and that it effectively rewrote, diluted and amended the findings of the Kenya National Commission on Human Rights (KNCHR), the 1st Interested Party herein, an action for which the Respondents had neither the mandate nor the powers. 11. The deponent also deprecated the Respondents' decision to collect, process and authenticate compensation claims outside the 1,101 victims already verified by the KNCHR, which he saw as amounting to usurpation of the supervisory function exclusively reserved for the 1st Interested Party. 12. The deponent stated that public interest and integrity of the reparation process demanded the immediate intervention of his honourable court as “any delay would render the Petitioners' *claim nugatory and defeat the very essence of constitutional justice and redress of constitutional violations*.” **The Respondents’ Responses** 1. The application is opposed. The Respondents filed depositions opposing the grant of interim relief. I will summarize the depositions below. 2. The affidavit of Prof. Makau Mutua was sworn on 28 July 2026. Prof. Mutua is the Chairperson and Principal Coordinator of the Panel of Experts on Compensation for Victims of Human Rights Violations, including those arising from Demonstrations and Public Protests. 3. Prof. Mutua deposed that following the judgment and ruling of the court in Kerugoya in **Munyeri & 2 others v Attorney General & 3 others; Mutua & 20 others (Interested Parties) [2025] KEHC 18266 (KLR)**, the President of the Republic issued Proclamation No. 1 of 2026, under which he required KNCHR to develop and submit a framework for compensation and reparations. He also re-established the Panel of Experts under Gazette Notice No. 3115 of 2026 as an internal administrative mechanism within the Office of the President, solely to facilitate implementation of the framework. The Panel was not to exercise supervisory authority over the work of KNCHR, and was to support implementation of the framework to ensure that compensation to eligible victims is effected in a transparent, accountable, and timely manner. 4. He deposed that the Panel was an implementing agency, an administrative government implementing mechanism. He averred that, contrary to what was stated in the Petition and the Motion, verification and authentication were not the Panel's inventions but were expressly commanded by the KNCHR Reparation Guidelines, which bind the Panel. 5. Prof. Makau stated that the awards were substantial, citing compensation for loss of life of Kes 3,000,000/-. He contended that authentication was indispensable to the lawful use of public money. He stated that dispensing public funds without authentication would expose the members of the Panel to personal liability, including criminal liability for misuse of public resources, and would violate the guiding principles of transparency, accountability, and fiscal sustainability in clause 5 of the guidelines, as well as Article 201 of the Constitution and the Public Finance Management Act. 6. Prof. Mutua denied that the Petitioners had been omitted or rejected. In his view, claims would be processed in line with the reparation guidelines, as the process was complex, requiring co-ordination with multiple agencies and a high level of proof. He categorically stated that enforced disappearance was an *“expressly recognized category and its victims are being processed, not excluded.*” 7. Prof Mutua denied that Kes.1,122,900,000/- out of Kes.2,000,000,000/- had been paid out. According to him, only Kes.674,100,000/- had been disbursed. In his view, the Petitioners had double-counted the first tranche of compensation. He averred that the funds were not at risk of exhaustion and would be replenished if needed. 8. On the merits of the application, Prof. Mutua deposed that the 2nd Respondent was not a legal person capable of being sued. He stated that the Petition was premature and unsupported by any evidence and contended that the petitioners had not shown that they had lodged a claim for compensation or that they were verified. Further, he opposed the release of information regarding the 33 verified victims and contended that the Petitioners had not exhausted available remedies. In any case, he stated that release of information would expose sensitive personal data of third-party victims. Regarding prayer for suspension or halting or reversing the compensation exercise, it was stated that this would prejudice the eligible verified victims who had received or were awaiting payment. Since these persons are not parties, they would have been condemned unheard, which would offend the cardinal principle of justice. He prayed that the application be dismissed. 9. The 1st respondent also filed grounds of opposition dated 28th July 2026. **The Replying Affidavit of the 2nd Respondent’s Joint Secretary** 1. The Joint Secretary of the 2nd Respondent, Dr Raphael Ngetich, made a sworn deposition on 30th July 2026, in which he opposed the application. He also averred that only Kes.674,100,000/- had been disbursed. He denied that victims of abduction and enforced disappearance were omitted from the category of harm, contending that the reparation process was ongoing. He averred that the petitioners ought to allow the process to proceed “*since the funds are available and the list of victims is not yet exhausted*.” 2. Dr Ngetich deposed that allowing the application would undermine the compensation process, as all other classes of victims would pursue similar court action. He contended that the Petitioners had not appeared before the Panel of Experts and that allowing their application would be tantamount to treating them as a “special” class of victims. He also stated that “authentication” was not unlawful but a requirement expressly provided in Gazette No. 3115 of 2026, which required the panel to act transparently and accountably and to keep proper records. He prayed that the application be dismissed. The 2nd and 3rd Respondents also filed Grounds of Opposition dated 30th July, 2026, opposing the application for conservatory orders. **The Response of the 1st Interested Party** 1. The 1st interested party filed a reply affidavit, sworn by Mr Joseph Muthama Ndiku, on 30th July 2026. In that affidavit, he deposed that the 1st interested party developed the subject reparations framework. The 1st interested party did so pursuant to the Constitution of Kenya, the court's judgment, and Kenya’s obligations under international human rights law. 2. Mr Ndiku deposed that following a comprehensive process, the 1st Interested Party submitted to the President a comprehensive reparation report containing the proposed Reparation Framework, policy recommendations for its implementation and verified register of victims eligible for reparative measures. 3. Regarding the Petition, Mr Ndiku submitted that it was instituted before the completion of the process and was therefore premature. He contended that the Petitioners should allow the ongoing reparation process to run its course before alleging discrimination. The deponent stated that allowing the application would be contrary to the fundamental human right principle of “*do no harm*” and would delay access to urgently needed medical treatment, rehabilitation services and other forms of assistance for vulnerable victims, thereby exacerbating their suffering and violating their rights to the highest attainable standards of health under Article 43(1)(a) of the Constitution of Kenya. Mr Ndiku further stated that the 1st interested Party opposed the Motion. **The Response of the 2nd Interested Party** 1. The 2nd Interested Party did not file a Replying Affidavit, although its advocate entered an appearance. **The Response of the 3rd Interested Party** 1. The 3rd Interested Party filed a reply affidavit, sworn by its CEO, Ms Florence Muturi, on 30th July, 2026. Ms Muturi deposed that the 1st and 2nd respondents lacked authority to vary, review, or exercise supervisory powers over the verification process undertaken by the 1st Interested Party. She stated that the 2nd respondent's mandate was limited to implementing the opposed framework. She contended that the Law Society of Kenya's position was that all victims duly verified under the Reparation Framework were to be treated equally and without discrimination. 2. Ms Muturi supported the application, averring that the victims of enforced disappearance had been excluded despite having been verified and giving their consent. 3. She averred that the Petition raised substantial constitutional questions touching Articles 27, 28 and 47 of the Constitution and the implementation of Presidential Proclamation No. 1 of 2026, and that it showed an apparent infringement of Petitioners’ rights. In her view, the Petition transcends the Petitioners’ private interests and concerns the integrity of the National Reparation Program established under Presidential Proclamation No. 1 of 2026. **Submissions of the Parties** 1. The parties made oral and written submissions. The IPOA left the decision to the court. This Court has considered the Parties' submissions in the analysis and determination below. **Analysis and Determination** 1. I have reviewed the Notice of Motion application dated 21st July 2026, the responses thereto, and the parties' submissions. I have also considered the documents filed herein. 2. I note that the High Court, in the judgment delivered on 4th December 2025, declared the President’s Proclamation dated 6th August, 2025 and the Gazette Notice No. 12002 dated 25th August, 2025 invalid, but suspended the invalidity to allow the Respondents to secure the amendment of the Proclamation and the Gazette Notice the subject of the consolidated Petition to accord with the court’s finding. 3. Thereafter, the President of the Republic issued Proclamation No. 1 of 2026 (Gazette Notice No. 3114 of 2026), by which he directed the KNCHR to develop and submit a framework to guide the provision of compensation and reparations to victims of violations of human rights. The proclamation was categorical that the Panel of Experts that he had reauthorized would not have supervisory authority over the work of the KNCHR and that it would support the implementation of the framework, consistent with the executive’s commitment to justice and accountability. 4. The Petitioners contend that they have been excluded by the 1st and 2nd Respondents from the compensation process and that a superfluous authentication process has been introduced. They seek to have the compensation/reparation exercise halted pending the hearing and determination of the Petition. 5. Since what is sought is a conservatory order, I must consider the applicable principles that a court seized of a petition of this nature must take into account. 6. The guiding principles were determined by the Supreme Court in the case of **Munya v Kithinji & 2 others [2014] KESC 30 (KLR).** At paragraph 86 of the said decision, the Supreme Court stated that: ***“…Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant courses.”*** 1. In the **Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR),** the High Court distilled the applicable principles as being: 2. ***Whether there is an arguable prima facie case with probability of success;*** 3. ***Whether the grant of conservatory orders will enhance constitutional values and objects;*** 4. ***Whether, if conservatory orders are not issued, the substratum of the case will be rendered nugatory; and*** 5. ***Where the public interest lies.*** 6. In the case of **Ahmed Issack Hassan Vs LSK, Disciplinary Tribunal and 2 Others (2018) KEHC 9470 (KLR),** the court held that: ***“17. Starting from the question of whether the applicant has established a*prima facie*case, I find that it has been held that a*prima facie*case is not a case which must succeed at the hearing of the main case but is rather a case which is not frivolous. In other words, the applicant needed to demonstrate that his case discloses arguable issues and, in this case, arguable Constitutional issues. Considering the totality of the issues raised in the petition, this Court cannot say with certainty that the Petitioner’s case is frivolous as he has raised fundamental questions of violation of constitutional rights which this court will have to address at the appropriate time.”*** 1. In **Adieno v Attorney General & 2 others (Petition 315 of 2014) [2014] KEHC 3051 (KLR)** held by the court that: ***“It has been held that in considering an application for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition. At this stage, the applicant is only required to establish a prima facie case with a likelihood of success. The applicant must further demonstrate that unless the conservatory order is granted, there is real danger which may be prejudicial to him. See Centre for Rights, Education and Awareness (CREAW) & 7 others vs The Hon. Attorney General, Nairobi HC Pet. No 16/2011, Muslims for Human Rights (MUHURI) & 2 others vs The Attorney General & Judicial Service Commission, Mombasa HC Pet. No. 7 of 2011 and V/D Berg Roses Kenya Limited & Another vs. Attorney General & 2 Others [2012] eKLR.”*** 1. Applying the above decisions to this case, I note that the Petition raises serious questions as to whether the 2nd Respondent can carry out the “authentication” as it is purporting to do. Further, the question as to whether the list of victims prepared by the KNCHR is conclusive is not idle and deserves interrogation by the Court. The Petitioners aver that the compensation fund is finite and may be exhausted before they are compensated. All these questions raise issues that are prima facie arguable. 2. I am therefore satisfied that the first principle has been met. I say so because a prima facie case is not one that will ultimately succeed, since success shall be determined upon consideration of the merits, but one that, on the basis of the material before the Court, is arguable. 3. Although it has been averred that the Petitioners should not focus solely on monetary compensation and that, in any event, funds can always be provided by the Government, this Court is persuaded that, unless conservatory orders are issued, there is a clear and present risk that the Petition will be rendered nugatory. In any case, there is no assurance that the compensation fund will be replenished. 4. In his deposition, Prof. Makau Mutua stated that compensation is being administered in order of priority. While the need for prioritization cannot be gainsaid, I note that the press releases of 23rd June and 3rd July, 2026 list victims to include fatalities, severe injuries, moderate injuries, minor injuries and sexual offences (aggravated). I am of the opinion that abductions and enforced disappearances are more deserving of prioritization than the groups entitled “moderate” and “minor” injuries; the exclusion of victims of abductions and enforced disappearances therefore raises a genuine concern. I am therefore persuaded that, unless conservatory orders are issued, the probability that the Petition would be rendered nugatory is real and not speculative. 5. I am persuaded that the issuance of conservatory orders would enhance constitutional values; the public interest calls for compensation for victims of human rights violations to be provided transparently, fairly and in strict conformity with the Constitution. The only way this can be done in these circumstances is to subject the exercise to judicial review. As that process is undertaken, the subject matter must be preserved so that the judicial review process is not a mere academic exercise. 6. What orders should issue? In my view, this court should balance the interests of the Petitioners and those of other victims. This calls for a carefully calibrated order that ensures that the interests of the 35 victims of abductions and enforced disappearances are protected while the rest of the compensation regime is allowed to go on. 7. This Court must therefore ensure that the other victims who aren’t before the Court, and in respect of whom there is no contestation, can receive their compensation while the merit of the Petitioners' claims is subjected to judicial review. **Final Orders** 1. The orders that therefore commend themselves to me are the following: 2. **Pending the hearing and determination of the Petition, a conservatory order is hereby issued restricting the 1st and 2nd Respondents from implementing, applying or acting upon the purported “authentication process” introduced by the Respondents for the verification of victims of torture and enforced disappearance, in compliance with Presidential Proclamation No. 1 of 2026;** 3. **The 1st and 2nd Respondents are hereby ordered to set aside Kes 105,000,000/-, out of the compensation fund of Kes 2,000,000,000/-, for purposes of compensation of the victims of abduction and enforced disappearances and abductions, pending the hearing and determination of the instant petition; and** 4. **Upon complying with order (b) above, the compensation process may proceed with respect to the victims whose compensation is not contested.** 5. Due to the nature of the matter, I make no orders as to costs. 6. It is so ordered. **Dated and signed at Nairobi this 11th day of August 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Senator **Dan Maanzo,** Mr **Mango**, Mr **Ndegwa Maina** and Ms **Wanjira Maina**, for the **Petitioners/Applicants**; Mr **Kipkogei** and Mr **Mbaya**, for the **1st Respondent**; Mr **Mbaya**, holding brief for Mr **Marwa**, for the **2nd and 3rd Respondents**; Mr **Maweu**, for the **1st Interested Party**; Ms **Adhiambo Ouma**, for the **2nd Interested Party**; Mr **Wambola**, holding brief for Mr **Elisha Ongoya, SC**, for the **3rd Interested Party**; and Ms **Neema Lwambia – Court Assistant**.