[2017] KEHC 1998 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 375 OF 2014

BETWEEN

KENNEDY KINUTHIA ……………………..….......…..……1ST PETITIONER

DAVID KURIA alias WESTERN…...……...…..……..……2ND PETITIONER

NICHOLAS KANYAGIA KAMAU….....................................3RD PETITIONER

CHARLES WACHIRA MWANGI…...………......……...…..4TH PETITIONER

AND

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

JUDGMENT

Introduction

1. The Petitioners, who are all male adults, allege a violation of their rights by the State following their alleged ejection from a public park when they all also claim to have been assaulted by State agents , in particular police officers and personnel drawn from the General Service Unit in 1992. The claim, admittedly, was lodged some twenty four years after the alleged violations took place.

2. The Petition, which is opposed by the State, raises issues of delay in enforcing a person’s rights and fundamental freedoms.

Basic background facts and outline of case

3. Together with others, the Petitioners had sometime in February 1992 petitioned the Attorney General for the release of political prisoners. When there was no immediate release, the Petitioners alongside many others decided to set up a protest camp and sit-ins within Uhuru Park, a public park. On or about 3 March 1992 under the cover of darkness, officers from the regular police force and the general service unit descended on the park and dispersed the gathering. The petitioners state that they were brutally and violently battered, whipped and beaten and then forcefully repatriated to their home districts.

4. The Petitioners alongside other peaceful demonstrators, almost immediately, returned to Nairobi and were accommodated at the All Saints Cathedral Church from 4th March 1992 until 19th January 1993 when all the political prisoners were released. The Petitioners state that for the ten months they were at the Cathedral they were subjected to violence and psychological torture and were treated in an inhumane and degrading manner. As a result the Petitioners claim to have suffered trauma and immense loss of earnings as well as damages which continues to affect them.

Petitioners’ case and evidence

5. The Petitioners’ respective cases are similar. Their respective affidavits detail the narrative I have outlined in the preceding paragraph.

6. In a rather jumbled up Petition, the Petitioners contended that their rights and freedoms under Article 29(a)(c)(d) & (f) of the Constitution had been violated as both their freedom and security of person were violated. The Petitioners stated that the rights were protected under the ss. 74 and 83 of the retired Constitution.

7. According to the Petitioners, they had been arbitrarily deprived of their freedom and security of person without just cause and detained without trial. The Petitioners also contended that contrary to the Constitution they had been subjected to violence and torture yet they were simply unarmed, peace and law abiding citizens who wanted to see to the release of their fellow citizens.

8. Each Petitioner essentially repeated the narrative during the oral hearing.

1st Petitioner

9. Kennedy Kinuthia, the 1st Petitioner, swore an affidavit in support of his case on 25 July 2014. In his oral testimony he told the court that he was related to one of the political prisoners whose release they had been agitating for. He testified further, while adopting the sworn deposition, that all the demonstrators at the park were peaceful and unarmed and they had simply accompanied their mothers to help see to the release of the political prisoners. He testified that the police officers had been brutal when dispersing them.

10. In cross-examination, the 1st Petitioner said he was fighting peacefully for the release of his cousin. He said that for the ten months he was either at the public park or the All Saints Cathedral, his rights were violated intermittently. The police, he insisted, would descend upon them at least twice a month. He said he was tortured and beaten and that he saw a doctor in Nakuru for treatment on 4 March 1992 but that he was not given any medical note though he was attended to. When asked why he did not file his claim for over 22 years, the 1st Petitioner stated that he was wary of the previously repressive regime.

11. In re-examination, the 1st Petitioner reiterated that he was tortured both physically and psychologically. He referred the court to a report in a local magazine to show that his inhumane treatment was well documented.

The 2nd Petitioner

12. The 2nd Petitioner David Kuria aka Western swore an affidavit on 16th May 2014.

13. The 2nd Petitioner’s case is similar to the 1st Petitioner’s.He also stated in his affidavit that though peaceful, he was alongside the other demonstrators harassed and tortured and also treated in an inhumane and degrading manner. He stated as much during the evidentiary hearing.

14. In cross examination he insisted that he was tortured and that the fact of torture was well documented as he also referred to a local magazine, the Society Magazine of March 1992. He described how they were dispersed arrested and then bundled into waiting police lorries to be taken back to his rural home in Nakuru. He insisted that he was injured and was treated in Nakuru even though he did not have any documented evidence of such treatment. The 2nd Petitioner stated that he suffered mental anguish and torture.

The 3rd Petitioner

15. Nicholas Kanyagia Kamau is the 3rd Petitioner. His case may be retrieved from both the affidavit sworn in Support of the Petition on 25th July 2014 and from the oral evidence he gave in court on 6 April 2016.

16. The 3rd Petitioner who is currently a school teacher also stated that he suffered both physical and psychological torture after the police stormed their peaceful vigil which was intended to place pressure on the State for the release of the political detainees.

17. In his oral testimony, the 3rd petitioner testified that he waited for twenty two years to lodge his claim as the previous regime was repressive. He further testified during cross examination that he was hit on the head and that he suffers occasional blackouts and has problems with his eyes due to the injuries he suffered. He stated further that he still has to seek medical attention. He blamed the police and thus the State for the violence meted on peaceful protestors like him.

The 4th Petitioner

18. The 4th Petitioner Charles Wachira Mwangi is also a teacher. Now aged 48 years, he lectures at the Kenya Medical Training College at Port Reitz Mombasa. His case is similar to that of his co-petitioners.

19. He was also present at the public park on the night of 3 March 1992 when the police officers descended and dispersed a gathering of peace loving citizens who were only asking for the release of political prisoners detained without trial.

20. His testimony was largely that the State meted unnecessary and excessive violence on them and that this fact was well documented. He also made reference to the Society Magazine.

21. Cross-examined by the State, the 4th Petitioner stated that he was beaten on both his legs and hands. He stated further that he was treated at Nakuru’s Bahati Hospital on 4 March 1992 and later discharged on the same day. He however admitted that he had been unable to secure the treatment records due to lapse of time. He also testified that he could not have filed his claim any earlier due to the repressive nature of the political regime.

22. All the petitioners stated that their rights were violated. The Petitioners asked the court to award them damages.

The Respondents’ case

23. The Respondent’s case is straight forward and is not pegged on any disputed facts.

24. The Respondent states that the Petitioner is barred as there had been inordinate delay on the part of the Petitioners in filing the same. Twenty two (22) years without any reason is a delay which cannot be excused, so states the Respondent who also claimed that the trial of the case was evidently prejudiced.

25. The Respondent’s case which could be discerned from the Grounds of Opposition filed on 19 January 2016 was also to the effect that the Petitioners action had violated provisions of the law and in particular the Public Order Act.

26. It was additionally the Respondent’s case that the Petitioner had not availed any evidence to show that their rights and freedoms had been infringed upon. According to the Respondent, reliance upon a newspaper cutting was not enough.

Arguments by the Parties

27. The Petitioners were represented by Mr. Gitau Mwara while Ms. Faith Irari urged the Respondent’s case.

Petitioners’ submissions

28. The Petitioners submitted that their constitutional rights had been grossly violated. Counsel submitted that the Petitioners had been unlawfully detained, had lost their liberty and indiscriminately beaten. According to counsel this was in violation of Sections 74 of the retired Constitution. Counsel pointed out that Article 29 of the current Constitution also prohibited such action. Additionally, counsel argued that the Petitioners had not only been subjected to physical torture but also inhuman and degrading treatment. Counsel detailed the slapping, the whipping, the kicking, the tear-gassings and the night evictions that the Petitioners underwent as the evidence of the inhuman and degrading treatment.

29. Mr. Mwara contended that the court was obligated under the doctrine of transitional justice to offer redress through the new constitutional dispensation and in this respect counsel referred to Article 22 of the Constitution to support the fact that previous violations of the bill of rights were preserved under the new Constitution.

30. For the proposition that the State was responsible for the action of its agents, counsel referred the court to the case of Milkah Wanjiku Kinuthia & 2 Others v Attorney General [2013]eKLR where the court ruled that the treatment of the Freedom Corner Victims by the State agents in March 1992 was rather degrading and unwarranted and the victims were entitled to damages.

31. On the issue of damages, counsel submitted that the guiding decision was that of Koigi Wa Wamwere v Attorney General [2015]eKLRwhere an amount of Kshs 2,500,000/= awarded to the appellant was stated to be inadequate compensation for a torture victim. Counsel submitted that an award of Kshs. 12,000,000/= would suffice.

Respondent’s Submissions

32. Ms. Irari submitted that the Petitioners had failed to prove their case. Counsel additionally contended that the Petition was “ baseless, obnoxious” and borne out of opportunism and “herd mentality” for the reason that it was filed simply because others had also filed suit. According to counsel, the Petitioners had failed to prove their respective claims on a balance of probabilities as required. Counsel submitted that the Petitioners had not shown that they were brutally beaten or that they suffered any injury. Counsel relied on the case of Peter Ngari Kagume vAttorney General HCCP No 128 of 2006for the proposition that any person who alleges violation of his constitutional rights was under an obligation to avail tangible evidence of the violation and in the instant case the Petitioner had failed to prove the same.

33. The Respondent further submitted that the Petitioners had inordinately delayed in bringing their claims before the court and had advanced no explanation for the delay. The delay, in counsel’s view, had crippled the Respondent’s ability to put up a credible defence. Appreciating the principle of transitional justice, counsel pointed out that the need to lay a basis for any delay while seeking reparations but that in the instant case the Petitioners had failed to do so. Additionally, counsel submitted that transitional justice was based on equity and equity aids the vigilant, not the indolent.

34. On damages sought, Ms. Irari urged the court to award only compensatory damages and no more.

Discussion and Determinations

35. There are basically three issues for determination. Firstly, are the claims by the Petitioners time-barred. Secondly, were the Petitioners rights or any alleged rights were violated? If so, what is the appropriate remedy in the circumstances.

Time barred claims?

36. The Respondent contended that the claims by the Petitioner for violation of their Constitutional rights have been filed so late in time to be accepted as genuine claims.

37. The Petitioners in contrast contended that they only delayed in bringing their claims because of the repressive regime that did not allow them to file the claims any earlier. The alleged violations took place nearly in 1992/1993 as per the Petitioners’ evidence. This was nearly twenty three years before the filing of the claim.

38. Without any statutory provision as to limitation of claims of violation of guaranteed rights and fundamental freedoms, the legal principle and approach is that a person who claims that his constitutional rights or freedom has been violated must however move with the necessary alacrity and expedition to enforce or protect the same through the court process. A party is not to sleep: see Attorney General of Uganda –vs- Omar Awadh & 6 Others [EACJ] No. 2 of 2012. Where there is delay, however short or minimal, the court is enjoined to enquire into the circumstances leading to such late filing of a constitutional petition. Ideally, the court also looks out for any prejudice that may be occasioned to the other party. The question of prejudice to the claimant when the claim is summarily disallowed must also be considered and answered.

39. In an attempt to explain the delay the Petitioners advanced the argument that the atmosphere was not conducive enough until after the year 2013. The delay was blamed on the political climate obtaining between the years.

40. In Ochieng Kenneth K’Ogutu –v- Kenyatta University & 2 Others HCCP No. 306 of 2012where a delay of 17 years without any reason advanced was held inexcusable, the court stated that the fact that prospective and genuine claimants may not be able to file claims if there prevails “a politically repressive climate” is a relevant factor to be considered where there has been delay for a lengthy period.

41. In the instant case, the Petitioners have stated that the existence of a politically repressive regime led to the delay in filing the claim. They testified as much on oath. I have no reason to doubt the Petitioners’ testimony that a repressive regime was not conducive to the filing of a constitutional claim given that the origin of the claim was the government’s hostility to those who agitated for their rights and freedoms or the rights and freedoms of others. I hasten however to add that the repressive regime’s tenure came to a halt in 2002. I doubt that there was any specified or general hostility after 2002. Yet it took the Petitioners another ten years to file suit. Did they need to wait that long again?

42. The happenings at the Freedom Corner appear to be well documented. The claim herein was also filed in the advent of the new Constitution adopted by the people of Kenya in 2010. It has been severally stated that Kenyans transited after 2010. The constitutional dispensation was shoved for the better. The democracy widened. I have myself no doubt on that. In the process Kenyans as well as the State organs submitted to the concept of transitional justice.

43. Thus inNjuguna Githiruvs.Attorney General [2016]eKLRthe concept of transitional justice was even expounded further by the court when the court stated as follows:

“[37]…the dictates of transitional Justice cannot be ignored. Transitional justice is a set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses, with Kenya being no exception. This Court in previous decisions has stated that these measures include criminal prosecutions, truth and justice commissions, reparations programs, and various kinds of institutional reforms. Having so said however, it is imperative for a Petitioner to demonstrate some justification for prolonged delays in instituting claims especially in light of the fact that the avenues and mechanisms for addressing such violations were already in existence after the change of the alleged oppressive regime of governance. I say so because as early as the year 2003, persons aggrieved by the acts of the Moi Regime approached the courts for redress pertaining to alleged violations of their constitutional rights and fundamental freedoms. These includeStanley Waweru Kariuki vs Attorney General, Petition 1376 of 2003; Gitari Cyrus Muraguri vs Attorney General, Miscellaneous Case No. 1185 of 2003 (OS); Harun Thungu Wakaba vs Attorney General, Nairobi, Miscellaneous Application 1411 of 2004; Rumba Kinuthia vs Attorney General; Nairobi HCCC 1408 of 2004, Mugo Theuri vs Attorney General, HC Misc. Civil Case No 565 of 2005; David Njuguna Wanyoike vs Attorney General,Petition No. 729 of 2006; Oduor Ong’wen and 20 Others vs Attorney General, Petition No. 777 of 2008; Charles Gachathi Mboko vs Attorney General,Civil Case No. 833 of 2009 (O.S.); James Omwega Achira vs Attorney General, Petition 242 of 2009; Mwangi Mathenge vs Attorney General, Petition 240 of 2009; and Koigi Wamwere vs Attorney General, Petition 737 of 2009 among many others. The foregoing further indicates that the cases alleging violations by the oppressive regime have been filed from 2003 onwards and even before the promulgation of the Constitution of Kenya, 2010. Transitional justice cannot however be a matter ad infinitum or a process without end as the Petitioner seems to have argued. Whereas such a claim may not be extinguished, the need to explain inordinate delay is a necessary requirement even if there is in fact no limitation of time for filing constitutional Petitions as the authorities above have clearly shown. That is why in Mombasa Civil Case No. 128 of 1962, Rawal vs Rawal [1990] KLR 275the Learned Judge stated thus:

“The effect of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time. It is not to extinguish claims.”

44. It is clear, and I am prepared to follow the principle, that the concept of transitional justice in special circumstances has a grip on the Kenyan jurisprudence. There is a need not to rush and dismiss suits on the basis of the doctrine of laches. The claimant is to be given the benefit of the doubt where the claimant may explain the delay and also where there is evidently no prejudice fetched on the Respondent by reason of evidence having been lost. I do not see how the Respondent may possibly claim that the evidence of the happenings at the freedom corner may have been lost or misplaced.

45. I am prepared to find and I so find and hold that the dictates of transitional justice would not allow the Petitioners’ claim pegged on the Constitution to be disallowed without venturing on the merits.

46. I would not disallow the Petition solely on the basis of limitation.

Violation of Constitutional rights

47. The burden of proving violation of a right or freedom enshrined in the Constitution rests on the person alleging the violation: see MatibavAttorney 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.

48. The Petitioners’ claim was that the Petitioners were humiliated and treated in an undignified manner. The Petitioners also claimed that they had been tortured.

49. Like all international conventions, our Constitutions have been clear that no one is to be subjected to torture or to cruel inhuman or degrading treatment and punishment whether physical or psychological. Infliction of physical suffering or threat to inflict such suffering is prohibited: Article 29(d) of the Constitution, s.74(1) of the retired Constitutionas well asArticle 5 of the United Nations Universal Declaration of Human Rights (UDHR).

50. All the Petitioners testified on how they were treated. They were beaten up, harassed, and bundled into lorries and taken back to their respective rural homes. If not beaten up and whipped, they were subject to the threat of such pain. There was documented evidence of such happenings. All the Petitioners described how they were treated by the police officers. The descriptions were vivid and neither Petitioner contradicted the other. The evidence adduced by the petitioners was also neither contradicted nor controverted by the Respondent. No evidence was adduced by the Respondent and not even the cross-examination by the Respondent’s counsel staggered the Petitioners’ version of events. I watched the Petitioners’ testify and their conviction and attitude exhibited their genuine approach. They were telling the truth.

51. The Petitioners, together with others, were simply agitating for the release of fellow Kenyans who had been detained without trial or jailed through questionable trials. Members of the police force were then unleashed on them. They were peaceful but were then beaten up and forcefully returned to their rural homes only for them to return to the city. They did not waver and were determined to meet their goal. They were again physically assaulted and harassed. I hold the view that it was not enough for the Respondent to simply insist that the absence of a medical report meant that the Petitioners had failed to prove their case. The Petitioners’ case was that their rights and freedoms had been violated and that is all they needed to prove. In particular they claimed that they had been physically and psychologically tortured. In my judgment, all the Petitioners did enough to prove their case on a balance of probabilities.

52. I must oblige and return the finding that all the Petitioners were not treated in a manner contemplated by the Constitution. They were mentally and psychologically tortured and harassed. They were physically abused even though the injuries afflicted may not have been so serious. They were inhumanly treated for no apparent reason. The culprits turned out to be the very same persons enjoined to protect the Petitioners. The constitutional spirit abhors such instances.

Reliefs

53. The Petitioners have asked for damages and I believe they are entitled to the same. Transitional justice would demand that compensation is extended to the Petitioners.

54. It is unnecessary for me to lay out the principles guiding the award of damages suffice to point out that the award of damages even in constitutional litigation is discretionary.

55. In Koigi WamwerevAttorney General [2015]eKLRthe court awarded damages while :

"accepting that the award of damages is not an exact science, and knowing that no monetary sum can really erase the scarring of the soul and the deprivation of dignity that some of these violations of rights entailed."

56. An award of damages in the instant case will vindicate the Petitioners. It certainly will not restitute the Petitioners but it will be an appreciation that their rights ought not to have been violated. Taking all circumstances into account, I hold the view that an award of Kshs 2,000,000/= to each of the Petitioners would suffice in the circumstances.

57. I do not however believe that the Respondent should be made to pay costs. The Petitioners were languid in approaching the court even after the year 2002 and the consequence, in the circumstances, would be to deny them costs.

58. I consequently make the following orders:

a. A declaration that the actions by the police officers enumerated in the petition constituted a violation of the Petitioners constitutional rights.

b. Each of the Petitioners will be paid damages in the sum of Kshs 2,000,000/= together with interest from the date of filing suit.

c. Each party will bear its own costs of the Petition.

59. Finally, the delay in rendering this judgment is rued. I indeed apologize to the parties and counsel.

Dated, signed and delivered at Nairobi this 14th day of November, 2017

J.L.ONGUTO

JUDGE