https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9098

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E474 OF 2023** **IN THE MATTER OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF A BREACH OF THE RIGHT TO FREEDOM AND SECURITY OF THE PERSON NOT TO BE SUBJECTED TO ANY FORM OF VIOLENCE OR TREATED IN A CRUEL INHUMAN AND DEGRADING MANNER AS ALLOWED UNDER THE PROVISIONS OF ARTICLE 29(C) & (F) OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE BREACH AND FAILURE TO PROTECT LIFE AS PROVIDED FOR IN ARTICLE 26 OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE BREACH OF THE NATIONAL VALUES AND PRINCIPLES OF GOOD GOVERNANACE AS PROVIDED FOR UNDER ARTICLE 10 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE DOCTRINE OF RES IPSA LOQUITER** **AND** **IN THE MATTER OF THE UNITED NATIONS DOCTRINE ON RESPONSIBILITY TO PROTECT** **AND** **IN THE MATTER OF THE RIGHTS TO ELDER MEMBERS OF SOCIETY AS ENSHRINED IN ARTICLE 57 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE RIGHT TO ENJOY ONES CULTURE AS ENSHRINED IN ARTICLE 44(1) & (2) OF THE CONSTITUTION OF KENYA AND THE RIGHT NOT TO BE COMPELLED TO UNDERGO CULTURAL PRACTICE OR RIGHT AS ENSHRINED IN ARTICLE 44(3) OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE WITCHCRAFT ACT (CAP 67) OF THE LAWS OF KENYA** **BETWEEN** **LEGAL ADVICE CENTER T/A** **KITUO CHA SHERIA……..……….………………………...PETITIONER** **VERSUS** **THE DIRECTOR GENERAL OF THE** **NATIONAL INTELLIGENCE SERVICE………...…..1ST RESPONDENT** **THE ATTORNEY GENERAL……………….…..……2ND RESPONDENT** **THE INSPECTOR GENERAL OF** **THE NATIONAL POLICE SERVICE………………...3RD RESPONDENT** **THE CABINET SECRETARY** **FOR THE INTERIOR……………………………….….4TH RESPONDENT** **THE COUNTY GOVERNMENT OF KISII…………5TH RESPONDENT** **THE COUNTY GOVERNMENT OF KILIFI………..6TH RESPONDENT** **JUDGMENT** **Brief Facts** 1. The petition dated 24th November 2023 is supported by the Petitioner’s affidavit in support of even dated and Further Affidavit dated 13th June 2025. 2. The petition challenges the acts and omissions by the respondents for the failure to protect the elderly women in Kisii and Kilifi Counties from attacks and killings by members of the public on allegations of practicing witchcraft. 3. The Petition thus seeks the following reliefs: - 4. **A declaration that by their acts and omissions the 1st, 3rd, 4th, 5th and 6th respondents have failed in their duty to provide the victims of the killings in the counties of Kisii and Kilifi based on false claims of witchcraft on elderly women their right to life as allowed under the provisions of Article 26 of the Constitution.** 5. **A declaration that by their acts and omissions the 1st, 3rd, 4th, 5th and 6th respondents have failed in their duty to provide the victims of the killings in the Counties of Kisii and Kilifi based on false claims of witchcraft on elderly women freedom and security of the person as allowed under the provisions of Article 29(c) & (f) of the Constitution.** 6. **A declaration that by their acts and omissions the 1st, 3rd, 4th, 5th and 6th respondents have failed in their duty to adhere to the provisions of Article 10 of the Constitution.** 7. **A declaration that by their acts and omissions of the 1st, 3rd, 4th, 5th and 6th respondents the victims of the killings in the counties of Kisii and Kilifi based on false claims of witchcraft on elderly women are deserving of damages to be assessed by the Honour.** 8. **A declaration that the 1st, 3rd and 4th respondents by their nonfeasance in failing to protect the elderly women in the Counties of Kisii and Kilifi as demanded by the Constitution and statute have no legal or moral legitimacy to hold their respective offices.** 9. **A declaration that the respondents jointly and severally by their nonfeasance in failing to protect the elderly women in the Counties of Kisii and Kilifi as demanded by the Constitution and statute have committed a crime against humanity due to their non action and toleration of killing of the elderly women in Kisii and Kilifi Counties.** 10. **A declaration that the 2nd respondent be ordered to prepare and present before Parliament for the purpose of debating and enacting specific legislation providing clear rights and protection to the elderly of the Republic as envisaged under the provisions of Article 57 of the Constitution and the Bill of Rights of the Constitution.** 11. In opposition to the petition, the 1st – 4th respondents filed grounds of opposition dated 24th April 2024 and the 6th respondent filed a Replying Affidavit dated 29th April 2024. **Petitioner’s Case** 1. The petitioner is a human rights non governmental organization registered in Kenya committed to helping the disadvantaged, poor and marginalized people in Kenya to access justice. The 1st respondent is the statutory officer in overall command of the National Intelligence Service,a service created under the provisions of Article 242(1) of the Constitution of Kenya. The 2nd respondent is a constitutional office allowed under the provisions of Article 156 of the Constitution of Kenya, the Principal Legal advisor to the Government of the Republic of Kenya. The 3rd respondent is a state officer in command of the National Police Service under Article 245(1) of the Constitution with his functions and duties defined under the provisions of Section 10 of the National Police Service Act 2011. The 4th respondent is a member of the Cabinet of the Government of Kenya responsible of the Ministry of the Interior of the Government of the Republic of Kenya. The 5th respondent is the County Government of the County of Kisii created under the provisions of Article 176 of the Constitution of Kenya. the 6th respondent is the County Government of the County of Kilifi created under the provisions of Article 176 of the Constitution of Kenya. 2. The 1st respondent is in charge of the National Intelligence Service a service whose functions are set out in Article 242(2) of the Constitution and specifically set out in Section 5(1) of the National Intelligence Service Act 2012 which are mainly to gather information to assist in the security of the Republic. The petitioner asserts that it is common knowledge that in Kisii and Kilifi regions there continues to be a common cultural practice of witchcraft and superstition which has targeted the elderly members of that society. In one instance there was the Marandi killings that occurred in December 2022 which falls under the jurisdiction of the 5th respondent where innocent elderly women lost their lives because of actions that were unsubstantiated based on mere rumours and innuendos. The petitioner argues that the killing of the elderly is an archaic and medieval practice that has no place in a civilized society. 1. The petitioner avers that the killers of the elderly allege that the elderly are witches who need to be purged to cleanse the society from bad omens. None of the killers are arrested by the 3rd respondent nor has the 1st respondent revealed any steps it has taken to gather intelligence of the matter. Further, the 5th and 6th respondents being the devolved governments of their respective counties under the provisions of Article 174(c) of the Constitution they inherit some of the responsibilities and obligations to the people of the county. Thus by their acts and omissions, the respondents have failed the innocent elderly women in Kisii and Kilifi Counties from the attacks and killings from members of the public on allegations that they are witches. **The 1st – 4th Respondents’ Case** 1. The respondents contend that the petition failed to meet the required threshold for a matter to qualify as a constitutional petition as stipulated in the case of **Anarita Karimi Njeru vs Republic** where the court laid out the threshold as follows: ‘*We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.’* 1. The respondents further contend that the matter does not meet the required threshold of litigation in matters of public interest as set out in the case of **Jennifer Shamalla vs LSK & 15 Others [2017] eKLR** which stated as follows: *“Public interest litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But the profound need of this tool has been plagued with misuses by persons who file public interest litigation just for the publicity and those vested with political interests. The courts therefore need to keep a check on the cases of action, in order to avoid unnecessary litigation. Vexatious and mischievous litigation must be identified and struck down so that the objectives of public interest litigation are not violated.* 1. Further, under the public duty doctrine, the police owe a duty to the public at large and not to individuals specifically and that such a duty of care would impose upon a police service potential liability of almost unlimited scope. Additionally, the respondents argue that the assertion by the petitioner that their failure to act is a crime against humanity is unmerited and not in line with Article 7 of the Rome Statute. **The 6th Respondent’s Case.** 1. The 6th respondent dislodges the false perception held by the petitioner that it has tolerated the aforesaid killings as alleged in the petition. The 6th respondent states that it is important to understand that the acts complained of are purely the province of the criminal justice system and its specific role in such a case would be policy based. Further, in a bid to curtail the vice, it has put in place measures including supporting the establishment of safe shelters such as the Mekatilili wa Mwenza Cultural Resource and Rescue Center, Kaya Godoma Rescue Center and Mrima wa Ndege Village, psychosocial support and rehabilitation services to ensure effective protection of victims of the killings, within areas considered raft with the vice. 2. The 6th respondent asserts that its leadership has been earnest and outspoken when it comes to addressing witch killings during public gatherings and public holiday celebrations. The county’s leadership has been working hand in hand with the County Commissioner and the entire criminal justice system at its disposal to ensure incidences are followed up and addressed. Further, the petition lacks clarity and specificity in defining and explaining how it violated Article 26 and 29(c) & (f) of the Constitution and is therefore an abuse of the court process. 3. The petitioner filed a Further Affidavit dated 13th June 2025 and states that the petition clearly sets out the provisions of the constitution to be violated, articles 26, 27, 28, 29 and 57, the nature of the violations and the manner in which the respondents’ inaction has contributed to the systematic killings and abuse of elderly women. The petition contains detailed factual allegations supported by witness statements, news reports and affidavits. Further the petition discloses a genuine constitutional grievance framed in the public interest under Article 22(2)(c) of the Constitution which seeks the enforcement of constitutional rights and the performance of duties expressly placed upon public institutions. 4. The petitioner asserts that Article 174(c) of the Constitution places a duty on county governments to enhance the well being of the people, while Article 57 mandates all state organs to take measures to protect the rights of older persons. Thus the 6th respondent’s attempt to defect responsibility on grounds that law enforcement is a national function fails to appreciate that the petition challenges their failure to take reasonable preventive steps within the devolved framework, including community sensitization, early warning response systems, support for victims and local enforcement coordination. 5. The petitioner argues that while the 6th respondent claims to have stablished safe shelters, psychosocial services and partnerships with community organizations, it has provided no verifiable data, impact reports, or outcome assessments to demonstrate the effectiveness or reach of those interventions. On the contrary, the killings continue to be reported and documented in multiple sub-counties under their jurisdiction. Further, the claim by the 6th respondent’s role is merely policy based is constitutionally insufficient as a policy duty that fails to translate into action in the face of ongoing violence renders such policy hollow and unconstitutional. 6. The petition was disposed of by way of written submissions. **Petitioner’s Submissions** 1. The petitioner submitted that Article 26(1) of the Constitution guarantees that every person has the right to life and this right imposes both negative and positive obligations on the state. The negative obligation requires the State to refrain from taking life unlawfully while the positive obligation imposes a duty on the State to prevent threats of life and actively protect persons under its jurisdiction. To buttress this point the petitioner placed reliance in the case of **Zeitun Juma Hassan (Suing on behalf of Abdul Ramadhan Biringe (deceased) vs Attorney General & 4 Others [2014] eKLR** where the court held that the State’s duty to protect life includes enacting appropriate laws and maintaining effective enforcement mechanisms for the prevention and punishment of acts that threaten life. 2. Similar reliance was placed in **Kimani vs Attorney General (Civil Appeal 2 of 2019) [2024] KECA 66 (KLR)** where the court held as follows:- ***The State has an obligation to ensure, protect and promote human rights within its borders. Where the State fails to discharge this duty, it can be held liable for damages for the breach. In order for a claimant to succeed in a claim premised on the failure by the State to discharge its obligation, two elements must be proved. First, there must be conduct consisting of an act or omission, which is attributable to the State under the law. The second is that the conduct must constitute a breach of a legal obligation of the State…The duty to protect enjoins the State to take positive action to protect citizens and other persons within its jurisdiction from violations that may be perpetrated by either state agents, private actors or other states.*** 1. The court further held:- ***The State therefore has an obligation to ensure the enjoyment of human rights. This duty requires the State to prevent violation of human rights by its agents as well as non state actors and to remedy the situation where violations have occurred.*** 1. The petitioner submitted that the pattern of killings in Kisii and Kilifi counties specifically targeting elderly women based on unsubstantiated allegations of witchcraft constitutes a clear, foreseeable and ongoing threat to life. Despite widespread media reports, civil society alerts and public outcry, the respondents have failed to act. The 1st and 3rd respondents, mandated to monitor, prevent and investigate criminal conduct took no meaningful steps to protect victims whereas the 5th and 6th respondents failed to intervene through devolved community protection mechanisms. 2. The petitioner further submitted that the violent killings of elderly women accused of witchcraft often involving lynching, burning, mutilation and mob justice constitute egregious violations of the right to security of the person. The said acts are not only inhuman and degrading but were carried out in the open often without prior warning signs and widespread community knowledge. The petitioner argued that the duty of the police and law enforcement agencies to prevent such atrocities is not discretionary, it is constitutional. To buttress this point, reliance was placed on the case of **G.N.B & 2 Others vs Attorney General [2018] eKLR** where the court held:- ***Police officers are under an obligation to protect fundamental rights of citizens and prevent all forms of atrocities. I find that the police subjected all the petitioners to inhuman and degrading treatment which was not justifiable at all under the repealed Constitution.*** 1. In the said context, the petitioner argued that the failure by the 3rd respondent to take action to prevent or respond to the said atrocities, despite having the constitutional mandate, capacity and information to do so, amounts to a gross dereliction of duty and a violation of Article 29. 2. The petitioner asserted that Article 10 of the Constitution enshrines the national values and principles of governance which are binding on all State organs, State officers, public officers and all persons. These values include human dignity, equity, social justice, inclusiveness, equality, human rights, non discrimination, protection of the marginalized, good governance, transparency and accountability. The ongoing and unchecked killing of elderly women in Kisii and Kilifi counties, who are among the most marginalized segments of society by virtue of their age, gender, social status and perceived lack of economic utility, starkly undermines the said values. The absence of any meaningful preventive action or investigative response by the State betrays the ideals of human dignity and equality. In such circumstances, the State’s silence becomes complicity and the failure to intervene constitutes a rejection of the very principles upon which the Constitution is anchored. 3. On the issue of damages, the petitioner cited the case of **Siewchand Ramanoop vs Attorney General of Trinidad and Tobago, PC Appeal No. 13 of 2004** where the court held that monetary awards for the breach of constitutional rights are not confined to conventional compensatory damages but may include an additional award to reflect the public importance of the right, the gravity of the violation and the need for deterrence. Per Lord Nicholls at paragraphs 18 and 19:- ***A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words….An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right has been violated was a constitutional right adds an extra dimension to the wrong…An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach and deter further breaches……*** 1. Similar reliance was placed in **Akusala A. Boniface vs OCS Langata Police Station & 4 others [2018] eKLR** where the court awarded both general and constitutional damages for police brutality. The Court emphasized that the State’s failure to protect citizens from cruel and inhuman treatment called for more than just compensation for physical harm; it warranted a constitutional remedy that signalled institutional accountability and respect for human rights. 2. The petitioner argued that the repeated killings of elderly women perpetrated in open and often preceded by threats or public accusations, were foreseeable and preventable. The respondents had the legal mandate operational authority and sufficient notice to act and their failure to do so constitutes a grave constitutional breach, not only of the right to life, but of the rights to dignity, security of person and equal protection under the law. Thus the families of the victims, the survivors and the affected communities are entitled to constitutional redress both to acknowledge the harm suffered and to restore confidence in the State’s commitment to the rule of law and protection of all lives. 3. In light of Article 73 of the Constitution which requires all State officers to exercise authority in a manner that is objective, accountable and responsive to the needs of people, the petitioner argued that the persistent failure by state officers to act in the face of the ongoing killings in Kisii and Kilifi counties undermines public trust and violates Article 73. Article 7 of the Rome Statute defines crimes against humanity to include acts such as murder, torture and persecution when committed as part of a widespread or systematic attack directed against any civilian population which the knowledge of the attack. Thus the targeted killings of elderly women driven by discriminatory stereotypes related to witchcraft and perpetuated through consistent state inaction amount to systematic attacks against a specific civilian group. 4. The petitioner argued that to date Kenya lacks a comprehensive legislative framework specifically tailored to protect the elderly. Thus the 2nd respondent has a constitutional obligation to initiate legislative processes aimed at giving full effect to Article 57 of the Constitution and to ensure the development of laws and policies that address the unique vulnerabilities and needs of older persons. **The 1st – 4th Respondents’ Submissions** 1. The respondents argued that the petition is misconceived and does not meet the principles in the case of **Anarita Karimi Njeru vs Republic (1979) eKLR** where the court held that:- ***If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.*** 1. The respondents further argued that the petition does not meet the required threshold of litigation in matters of public interest as it lacks collective focus and generalizes issues about a particular cultural practice without demonstrating how it impacts public welfare on a significant scale. To buttress this point, reliance was placed in the case of **Ashok Kumar Pandey vs State of West Bengal [56]** where it was held that:- ***Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly*** ***private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of public who approached the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs.*** 1. Further reliance was placed in the case of **Jennifer Shamalla vs LSK & 15 Others [2017] eKLR** where the court stated as follows:- ***Public interest litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But the profound need of this tool has been plagued with misuses by persons who file public interest litigation just for the publicity and those vested with political interests. The courts therefore need to keep a check on the cases of action, in order to avoid unnecessary litigation. Vexatious and mischievous litigation must be identified and struck down so that the objectives of public interest litigation are not violated.*** 1. The respondents contended that under the public duty doctrine, the police owe a duty to the public at large and not to individuals specifically and that such a duty of care would impose upon a police service potential liability of almost unlimited scope. Further for a State to be liable for its failure to protect the lives of the elderly at Kisii and Kilifi County, there must have been a special duty activated by information made available to the State or the police; that the elderly were at the risk of being exposed to acts of violence so that the State could in turn take necessary measures to protect the lives and properties of those individuals in question. The respondents were not given prior information acts of violence were expected to be perpetrated in a certain area or against specific persons so that they could organize to offer the required protection to the elderly. Reliance was placed in the case of **Charles Murigu Muriithi & 2 Others vs Attorney General [2015] eKLR** where the court held:- ***The State’s duty to protect those rights would only be activated if it is demonstrated that the police or other Sate agencies had prior information that a section of the members of public in a certain area or specific individuals, were in danger of being subjected to acts of violence against their person or property and that the police, negligently and deliberately failed to act on such information leading to a violation of the rights protected under the Constitution.*** 1. The respondents contended that the petitioner’s claims are generalized and speculative, lacking specific instances or evidence of harm directly caused by their actions or omissions. For relief to be granted, particularly in cases of alleged failure by public authorities, the petitioner must provide concrete, factual evidence of a duty, breach and resulting harm, which the petitioner has failed to meet this evidentiary burden. Reliance was placed in the case of **Kariithi & Another vs Attorney General & Another (Constitutional Petition 30 of 2013) [2021] KEHC 308 (23 November 2021)** where Mativo J (as he then was) held:- ***Whoever desires any court to give judgment as to any legal right or liability, dependant on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact.*** **The 6th Respondent’s Submissions.** 1. The 6th respondent identified two issues for determination as follows: whether the 6th respondent violated the rights of the elderly women under Article 26 and 29(c) and (f) of the Constitution and whether the remedies sought should be issued. The 6th respondent submitted that the petitioner did not produce any evidence to show that it was made aware of the longing killings. There was no evidence in the form of an OB report or evidence to show that the matter was reported to the authorities. Additionally, the petitioners did not give a list of the alleged victims’ names or their immediate families other than newspaper clippings. Thus the court has no way of ascertaining the veracity of the reports therein since the same have not been substantiated by any other evidence. 2. The 6th respondent asserted that the petitioner claims that it must have been aware of such occurrences based on intelligence reports received however the same is based on an assumption. Further, it is not a consumer of intelligence reports and in the instant case, it did not have any prior knowledge that such horrific events were going to take place. Reliance was placed in the case of **Charles Murigi Muriithi & 2 Others vs Attorney General (2015) eKLR** where the court held that:- ***We have also determined that the State’s duty to protect those rights would only be activated if it is demonstrated that the police or other State agencies had prior information that a section of the members of public in a certain area or specific individuals, were in danger of being subjected to acts of violence against their person or property and that the police, negligently and deliberately failed to act on such information leading to a violation of the rights protected under the Constitution.*** 1. Further reliance was placed in the case of **Paul K. Waweru & 4 Others vs AG & 2 Others (2016) eKLR** where the court held:- ***There can be no doubt that the constitution does place upon the state an obligation to protect all citizens from violent acts which could lead to a violation of their rights. However, the state will only be held liable for actions of non state actors where it is shown that it breached its duty of care. There must be culpability on the part of state agents for liability to ensue.*** 1. The 6th respondent further argued that it does not have the responsibility to enforce law and order within its boundaries. To buttress this point, reliance was placed in the case of **Florence Amunga Omukanda & Another vs Attorney General & 2 Others** **(2011) eKLR** where the court noted:- ***The State protects its citizens through the police service. The police service is the organ responsible for maintaining law and order, preservation of peace, protection of life and property as well as prevention and detection of crime including the apprehension of offenders.*** 1. The 6th respondent asserted that under county governments’ legislation and practice, counties do not have a direct mandate to provide security to its citizens. Despite that, the 6th respondent submitted that it has taken reasonable steps to ensure such unfortunate and horrific events do not occur in the future including formulating policies and educating people on the need to respect and preserve all life. 2. On the issue of damages, the 6th respondent argued that the petitioner has not given a list of the alleged victims of the killings or the administrators of their estate to whom the damages, if awarded, would be payable to. While an award for damages for constitutional rights violations is permissible, one has to demonstrate and prove on a balance of probabilities that such rights were indeed violated. Reliance was placed in the case of **Muriithi & Another vs Attorney General & Another (2023) eKLR** where it was held:- ***Similarly the petitioners are claiming damages for breach of constitutional rights. True, it is well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the constitution. I accept in principle that constitutional damages as a relief separate and distinct from remedies available under private law is competent because a violation of a constitutional right must of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms. However, a petitioner must demonstrate the breach of rights to qualify for an award of damages for violation of rights.*** 1. The 6th respondent argued that the petitioner has not proved their case through production of evidence to show that it was well aware or adequately informed that there would be killings of elderly women in the county on suspicion of witchcraft. To buttress this point reliance was placed in the case of **Anarita Karimi Njeru vs Republic** (no citation given):- ***A person who alleges breach of fundamental rights must prove the violation. He must demonstrate the provisions of the Constitution which were alleged violated and the rights. The onus on the petitioners to establish violation of alleged rights is not a mere formality; it is important. Differently put, this includes sufficient facts to justify a finding that their rights were violated.*** **Analysis and Determination** 1. The main issues for determination are: 2. Whether the respondents violated the petitioner’s constitutional rights; and 3. Whether the petitioner is entitled to the orders sought. ***Whether the respondents violated the petitioner’s constitutional rights.*** 1. This Petition majorly implicates the following three critical rights: 2. **Articles 26 of the Constitution** stipulates as follows:- **(1) Every person has the right to life.** **(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.** 1. **Article 29(c) & (f) of the Constitution** provides:- **Every person has the right to freedom and security of the person, which includes the right not to be-** **(c) Subjected to any form of violence from either public or private sources;** **(f) Treated or punished in a cruel, inhuman or degrading manner.** 1. **Article 57 provides:-** **The State shall take measures to ensure the rights of older persons-** **(a) To fully participate in the affairs of society** **(b) To pursue their personal development;** **(c) To live in dignity and respect and be free from abuse; and** **(d) To receive reasonable care and assistance from their family and the State.** 1. A properly pleaded Constitutional Petition must be pleaded with some reasonable degree of precision, identifying the constitutional provisions that are alleged to have been violated/threatened and the manner of the violation or the threatened violation. This principle was enunciated in **Anarita Karimi Njeru vs Republic (1979) KLR** where the court stated as follows:- ***If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.*** 1. The principle in **Anarita Karimi** was further cited with approval in **Mumo Matemu vs** **Trusted Society of Human Rights Alliance (2014) eKLR** where the court held thus:- ***We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.*** ***The principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that established the* *rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.*** 1. In addition to satisfying the pleaded threshold required for Constitutional Petition, the Petitioner must go further and substantiate with credible evidence, proving to the required standard of balance of probabilities. 2. The instant Petition is predicated on Articles 10, 26, 29(c) & (f), 44 and 57 of the Constitution of Kenya. The Petitioner alleges violation of the right to life for elderly women in Kisii and Kilifi counties including the security of the person as outlined in Articles 26, 29 and 57 of the Constitution have been violated by persons who target them for elimination after branding them as witches. The constitutional breach by the respondents is through the alleged failure to protect the elderly women lives against those attacks and killings by the members of the public. 3. From the above analysis, it is evident that the Petitioner has distinctly outlined the constitutional rights that been violated and how they have been violated in regard to certain group of the victims (elderly women) that is allegedly targeted for practising witchcraft but the description is too wide and falls short of any specifics that contain exact details such as police reports containing names of those that have been killed in the manner alleged or other credible sources confirming persons who died under those circumstances. 4. **Articles 26 of the Constitution** stipulate as follows: - **(1) Every person has the right to life.** **(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.** 1. **Article 29(c) & (f) of the Constitution** provides:- **Every person has the right to freedom and security of the person, which includes the right not to be-** **(c) Subjected to any form of violence from either public or private sources;** **(f) Treated or punished in a cruel, inhuman or degrading manner.** 1. **Article 57 provides:-** **The State shall take measures to ensure the rights of older persons-** **(a) To fully participate in the affairs of society** **(b) To pursue their personal development;** **(c) To live in dignity and respect and be free from abuse; and** **(d) To receive reasonable care and assistance from their family and the State.** 1. **Section 107 of the Evidence Act** provides that whoever desires any court to give judgment as to any legal right or liability dependent the evidence of facts which he asserts must prove that those facts exist. Further **Section 109 of the Evidence Act** provides;- *‘The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.’* 1. The Supreme Court in **Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] KESC 66 (KLR)** elaborated and affirmed the principle thus: ***“[49] Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and Section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*** ***[50] This Court in Raila Odinga & Others v. Independent Electoral & Boundaries Commission & Others, Petition No. 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:*** ***“…a Petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”*** 1. Have the Petitioners discharged this burden of proof through credible and admissible evidence? 2. The petitioner relies on newspaper cuttings in support of its claim. **Section 35 of the Evidence Act** provides- **In any civil proceedings where direct or oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say-** 1. **If the maker of the statement either-** 2. **Had personal knowledge of the matters dealt with by the statement; or** 3. **Where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information** **supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters.** 4. It is the duty of the petitioner to prove on a balance of probabilities that its allegations in the instant petition are indeed true. The mere allegation of facts or allegations of killings of elderly women without producing credible evidence in support is not enough. 5. The Petitioner contended that it relied on witness statements, news reports and affidavits from the record but it essentially relied relied only on newspaper cuttings as proof. To be exact, the record reveals that the petitioner relied on newspaper articles from the Daily Nation dated 13th January 2022, K24 news website article dated 2nd March 2023, Nation dated 22nd February 2023, The Star dated 7th November 2021, The Standard and a Report from Kenya human Rights Commission dated 22nd October 2021 which was printed from their website. 6. Under **Section 86(1)(b) of the Evidence Act** it is provided that newspapers are one of the documents whose genuineness is presumed by the court, which therefore makes the newspaper’s prima facie admissible in evidence. However, the statement of fact contained in the newspapers is merely hearsay and therefore inadmissible in evidence in absence of the maker of the statement appearing before the court and deposing to have perceived the fact reported. In the instant case, the petitioner did not call the makers of the newspaper cuttings nor did it file an affidavit in support. Though the newspapers may be presumed genuine, the same remain inadmissible in evidence for failure to avail the makers to give evidence and produce the same deposing to have perceived the facts reported. This was stipulated in the case of **Andrew Omtata Okoiti & 5 Others vs AG & 2 Others (2010) eKLR** where the court stated:- ***This case however, can hardly go far because the petitioners have solely relied on newspaper cuttings in discharging their evidentiary burden which approach is rather flawed. The probative value of such cuttings is not in line with the requirements of the Evidence Act and most importantly, their probative value points to the direction of hearsay, which then impugns their admissibility. Without diluting the existing principles on the discharge of evidentiary burden, an allegation of such weight cannot be founded on opinion pieces written by authors who most likely sourced their information from 3rd parties.*** 1. Similarly in **Kituo Cha Sheria & Another vs Central Bank of Kenya & 8 Others Petition No. 191 of 2011** where it was held that:- ***As correctly pointed out by the Attorney General and the 1st respondent, the petition has its basis in a newspaper article and documents which have not been executed. Clearly, therefore, the primary documents that the petitioners rely on are of doubtful probative value, as submitted by the respondents in reliance on the case of Wamwere vs The Ag and Randu Nzau Ruwa & 2 Others vs Internal Security Minister & Another (2012) eKLR. If I may borrow the words of the court in the Ruwa case, with tremendous respect to the petitioners, these media articles, taken alone, are of no probative value and do not demonstrate any effort on the part of the petitioners to demonstrate violation of the constitution by the respondents.*** ***The first is a newspaper article from the Daily Nation of October 19 2011. The second is an unsigned, undated agreement referred to as a “Share Sale and Purchase Agreement”. The third is the lease between Central Bank and Thomas De La Rue Kenya Limited entered into in 1992, while the fourth document is titled “De La Rue Currency and Security Print Limited Statement of financial Position as at March 2009.”*** ***The petitioners have alleged violation of public procurement laws. On the basis of the documents before me, it is difficult to see how such violation occurred. there is no evidence that the alleged contracts had been entered into, and if they had, whether the process was indeed in violation of the law that regulates procurement.*** 1. Further in **Kenya Small Scale Farmers Forum vs Cabinet Secretary Ministry of Education, Science and Technology & 5 Others (2015) eKLR** where the court noted:- ***I have little doubt in my mind that newspaper reports should not constitute evidence upon which a court of law should solely rely to make a determination. They ordinarily do not satisfy and are not covered under the provisions of Section 35 of the Evidence Act (Cap 80) Laws of Kenya. Print media articles have no evidential value and the court should not rely on the same as a basis for determining any matter.*** 1. Additionally in **Independent Electoral and Boundaries Commissions (IEBC) vs National Super Alliance (NASA) Kenya & 6 Others [2017] eKLR** where it was held that:- ***On our part, having considered the evidence on record and the law relating to admissibility and probative value of newspaper cuttings, we find that a report in a newspaper is hearsay evidence. We are conscious of Section 86(1)(b) of the Evidence Act which provides that newspapers are one of the documents whose genuineness is presumed by the court. This section prima facie makes newspapers admissible in evidence. However, a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported. Even if newspapers are admissible in evidence without formal proof, the paper itself is not proof of its contents. It would merely amount to an anonymous statement and cannot be treated as proof of the facts stated in the newspaper.*** 1. Thus, it is my considered view the petition does not meet the specificity element and the petitioner has failed to substantively proof its petition. The sources of facts that led to publication of those newspaper articles cannot be verified as not even the authors of these reports swore affidavits to authenticate the reports relied by the Petitioners. On a balance of probabilities, I would not regard this as credible evidence to be used as a basis of finding liability. 2. The conclusion that this Court must inescapably reach is that this Petition fails for want of proof on a balance of probabilities. It is therefore dismissed in its entirety. 3. As it is public interest litigation, I make no orders as to costs. ***JUDGMENT DATED and DELIVERED VIRTUALLY this 25th day of June, 2026.*** **L.N. MUGAMBI** **JUDGE**