[2012] KEHC 5476 (KLR)

[2012] KEHC 5476 (KLR)

The court found that the plaintiff's arrest on 17th August 1982 was not unlawful or malicious, as there was reasonable and probable cause for the prosecution based on available evidence and the Chief Magistrate's committal for trial. However, the court held that the plaintiff was subjected to torture and inhuman treatment while in custody, in violation of Section 74(1) of the repealed Constitution, and that his prolonged detention in police custody before arraignment contravened Section 72(3). The court further determined that the delay in trial due to awaiting amendments to the Criminal Procedure Code, and the retroactive application of those amendments, violated the plaintiff's right to...

Citation
[2012] KEHC 5476 (KLR)
Parties
Plaintiff: Otieno Mak’Onyango; Defendant: Attorney General; Defendant: Daniel T. Arap Moi
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
15 June 2012
Case Number
Civil Case 845 of 2003
Procedural Posture
Civil Suit / Judgment
Outcome
Judgment for the plaintiff against the 1st defendant; 2nd defendant absolved of liability.
Legal Topics
Unlawful Detention, Malicious Prosecution, Torture and Inhuman Treatment, Vicarious Liability, Constitutional Rights Violation, Damages Assessment
Source Language
English
Constitutional Law Tort Law Civil Procedure Unlawful Detention Malicious Prosecution Torture and Inhuman Treatment Vicarious Liability Constitutional Rights Violation +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 23 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Otieno Mak’Onyango

Plaintiff

Attorney General

Defendant

Daniel T. Arap Moi

Defendant

Procedural Posture

Civil Suit / Judgment

Legal Issues

  1. 1 Whether the plaintiff's arrest and prosecution on the charge of treason was unlawful and/or malicious.
  2. 2 Whether the plaintiff's detention was unlawful and in violation of constitutional rights.
  3. 3 Whether the defendants, jointly or severally, are liable for the said actions.

Ratio Decidendi

The court found that the plaintiff's arrest on 17th August 1982 was not unlawful or malicious, as there was reasonable and probable cause for the prosecution based on available evidence and the Chief Magistrate's committal for trial. However, the court held that the plaintiff was subjected to torture and inhuman treatment while in custody, in violation of Section 74(1) of the repealed Constitution, and that his prolonged detention in police custody before arraignment contravened Section 72(3). The court further determined that the delay in trial due to awaiting amendments to the Criminal Procedure Code, and the retroactive application of those amendments, violated the plaintiff's right to...

Court Disposition

Judgment for the plaintiff against the 1st defendant; 2nd defendant absolved of liability.

Orders

  • Judgment for the plaintiff in the sum of KES 20,000,000 against the 1st defendant.
  • The 1st defendant shall pay interest at court rates on the awarded sum.