[2014] KEHC 8061 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO.338 OF 2011

BETWEEN

MALIK MOHAMMED KIPSANG'(Suing on his behalf as Administrator and on behalf of the Estate ofWILLIAM CHEMUTSO KIPSANG').............................................................................PETITTIONER

AND

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

JUDGMENT

Petitioner's Case

The Petition dated 8th December 2011 was filed by one, Malik Mohamed Kipsang', in his capacity as the Administrator of the estate of one, William Chemutso Kipsang' (deceased).

It is his case that on 4th November 1994, the deceased who was his father, was arrested in Bungoma within the Western Province by officers from the Special Branch of the Kenya Police.

Thereafter, he was locked up in a solitary cell at Kakamega Police Station for three days before being blindfolded and driven in circles and finally being taken to the Nyayo House in Nairobi where he found himself in an underground cell. The following day, he was allegedly taken to the 24th Floor of the same building where he was presented before a panel of about ten people who interrogated him on his knowledge of the “Mwakenya” Organisation which had been proscribed.

The panel allegedly stripped him naked, beat him mercilessly with rubber whips, broken chair pieces and rained kicks and blows on him which acts were repeated daily for a number of days. That after each session, he would be returned to the cell which was flooded with pressurized water which would be sprayed on him for several hours while naked. He was not provided with water or milk to drink and his throat became inflamed to the extent that he was unable to swallow anything. He also had no sleeping mat nor blanket and his family had no knowledge of his whereabouts.

That on 22nd December 1994, his family received information from the Post Master in Bungoma that he had died and his body was at Nakuru Provincial Hospital Mortuary.

It is the Petitioner's further case that the deceased was tortured and killed because he held political opinions that were contrary to those of the Government and Ruling Political Party of the day and and his death was as a result of the torture that he was subjected to.

Lastly, that all the actions complained of, amounted to torture, inhuman and degrading treatment contrary to Section 74(1)of the Repealed Constitution and he now seeks the following orders:

“(a) A declaration that the deceased's fundamental rights and freedoms were contravened and grossly violated by the Respondent's Special Branch Police Officers who were Kenyan government servants, agents and/or employees in its institutions on 4th November 1994 and for 35 days at various Police Stations and thereafter at Nyayo House Torture Chambers.

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

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

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

(e) Costs of the Petition and Interest.”

Respondent's Case

Although the Attorney-General, sued on behalf of the Government of Kenya, was represented throughout the hearing, learned State counsel did not cross-examine the Petitioner when he tendered his oral evidence on 12th March 2014, did not call any evidence, filed no response to the Petition and filed no Submissions even on issues of law. In effect, the Petition was wholly undefended for unknown reasons.

Submissions

Mr. Okindo, learned Counsel for the Petitioner filed extensive Submissions and argued that the actions of the agents of the Republic of Kenya elsewhere set out above amounted to the following violations;

(i) Deprivation of the deceased's right to personal liberty contrary to Section 72(1) of the Repealed Constitution.

(ii) Denial of the right to be released on bail or bond after being held beyond the stipulated period contrary to Section 72(5) of the Repealed Constitution.

(iii) Denial of the Protection of the law contrary to Section 77(1) of the Repealed Constitution.

(v) Denial of the freedom of assembly and association contrary to Section 79(1) of the Repealed Constitution.

It was also Mr. Okindo's submission that all the rights above were saved and are secured in the Constitution, 2010 by dint of Section 6 of the Sixth Schedule to the said Constitution and are enforceable in the present constitutional regime.

As to the remedies available to the Petitioner, Mr. Okindo submitted that an award in damages would be adequate over and above declarations of violations aforesaid. He submitted in that regard that Kshs.25 Million is adequate compensation in the circumstances based on the following comparable decisions, in his view;

(i) James Orengo vs the Attorney General and Anor – Nairobi High Court Civil suit No.207 of 2002

(ii) Gitari Cyrus Muraguri vs The Attorney General - Misc. Case No.1185 of 2002 (O.S)

(iii) Oduor Ong'wen & 20 Others vs The Attorney General - Petition No.777 of 2008

(iv) Otieno Mak'Onyango vs The Attorney General & Daniel T. ArapMoi – Nairobi HCCC No.845 of 2003. ”

In all the above cases, the High Court found violations of fundamental rights and granted damages ranging from Kshs.2. 5 Million in the Oduor Ong'wen (supra) case to Kshs.20 Million in the Mak'Onyango Case.

Determination

In a case such as this one, it would have been expected that the Respondent would at the very least, challenge the facts as presented, including subjecting the Petitioner to a robust cross-examination. No such challenge was offered and on the evidence, it is very difficult for this Court to refuse to accept the Petitioner's version of the events in issue although no direct evidence was tendered. I say so because at the very least, a person that has been sued has the duty to question the veracity of evidence tendered by the complaining party. While it is true that he who asserts a fact has the burden of proving it, where facts are laid before the Court and the opposing party treats the same casually and makes no effort to answer them, the Court will ultimately be left to deal with uncontested facts and I have taken the firm position that I accept the facts in this case as they are.

If that be the case, the only other issue to address is whether those uncontested facts are sufficient to prove violations of the Constitution and specifically the stated rights.

Deprivation of the Petitioner's Right to Personal Liberty

Sections 72(1)and(5) of the Repealed Constitution provided as follows;

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases -

(a) in execution of the sentence or order of a Court, whether established for Kenya or some other country, in respect of a criminal offence of which he has been convicted;

(b) in execution of the order of the High Court or the Court of Appeal punishing him for contempt of that court or of another court or tribunal;

(c) in execution of the order of a court made to secure the fulfillment of an obligation imposed on him by law;

(d) for the purpose of bringing him before a Court in execution of the order of a Court;

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Kenya;

(f) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;

(g) for the purpose of preventing the spread of an infectious or contagious disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community;

(i) for the purpose of preventing the unlawful entry of that person into Kenya, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Kenya or for the purpose of restricting that person while he is being conveyed through Kenya in the course of his extradition or removal as a convicted prisoner from one country to another; or

(j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Kenya or prohibiting him from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during a visit that he is permitted to make to a part of Kenya in which, in consequence of the order, his presence would otherwise be unlawful.

(2) …

(3) …

(4) …

(5) If a person arrested or detained as mentioned in subsection (3)

(b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. ”

I have reproduced verbatim the above provisions because the evidence before me is that the deceased was held without charge from 4th November 1994 until 22nd December 1994 or thereabouts when the family was informed that he had died.

It is now trite that where a person is held beyond the time stipulated by the Constitution, then his right to personal liberty and the right to be charged before a competent Court has been violated – See HCCC No.1408/2014 Rumba Kinuthia vs The Attorney General.

I reiterate the above finding and will hold in favour of the Petitioner on this aspect of his case.

Freedom from Torture, Inhuman and Degrading Treatment

It has been stated that the deceased was subjected to torture by being locked up in a water logged cell; being sprayed with pressurized water; being denied food, water and milk and being denied a sleeping mat or blanket and subsequently, he died as a result thereof.

Section 74(1) of the Repealed Constitution provided as follows;

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

In Zeitun Juma Hassan (petitioning on behalf of the Estate of Abdul Rahman Biringe (deceased)) vs AG, Petition No.57 of 2011 the Court expressed itself as follows regarding allegations of torture;

“The Petitioner also alleges that the deceased was tortured or subjected to cruel and inhuman treatment. Section 74(1) of the former Constitution provides that,'No person shall be subject to torture or to inhuman or degrading punishment or other treatment.'The United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as;'any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.' This definition of torture has been adopted by our Courts in Republic vs Minister For Home Affairs and Others ex-parte Sitamze [2008] 2 EA 323 and Frankline Kithinji Muriithi vs Loyford Riungu Muriithi and others Nyeri CA Civil Appeal No.43 of 2013 [2014] eKLR

International human rights standards provide that there is a negative obligation to refrain from subjecting people to torture or to inhuman or degrading treatment or punishment. There is a positive obligation on public authorities to intervene to stop torture, inhuman or degrading treatment or punishment as soon as they become aware of it. There is also an obligation not to expose a person to torture or inhuman or degrading treatment or punishment and a positive obligation on States to investigate any allegations of torture or of inhuman or degrading treatment or punishment.”

I agree with the learned Judge and all evidence before me points to the fact that the deceased was tortured, developed illnesses as a result and died.

I have no choice but to find in favour of the Petitioner on this limb of his case.

Right to the Protection of the Law

Section 77(1) of the Repealed Constitution provided thus;

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

On this aspect of the case, there is no doubt that the deceased was never taken to Court and as was stated by the Court of Appeal inMbugua vs Republic, Cr. App. No.50 of 2008 the right in Section 77(1)is limited to actual proceedings and not intended criminal proceedings before a competent Court. I do not see how this right was violated and I so find.

Freedom of Assembly and Association

Section 79(1) of the Repealed Constitution provided that;

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

In the instant case, it has been urged that the deceased was denied freedom to assemble or associate with people of his choice on the suspicion that he was engaged in subversive activities. Important as the point may be, no evidence on this claim was led or presented to this Court. All evidence led related to the facts between the time of the deceased's arrest to the time of his death. No evidence was led on his association with anyone else and although I may agree that his alleged “Mwakenya” links were the cause of his arrest, that fact alone cannot prove violation of the right to association or assembly. I have already found that his detention was unlawful and that is all to say on the basis of the evidence before me.

I cannot accede to this aspect of the Petition and will instead dismiss the claim in that regard.

Remedies

Section 84(1) and (2) of the Repealed Constitution provided as follows;

“(1) Subject to subsection (6), if a person alleges that any of the provisions of sections 70 to 83 (inclusive) has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if another person alleges a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.

(2) The High Court shall have original jurisdiction -

(a) to hear and determine an application made by a person in pursuance of subsection (1);

(b) to determine any question arising in the case of a person which is referred to it in pursuance of subsection (3), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 70 to 83 (inclusive).”

(3) ...

(4) ...

(5) ...

(6) …

(7) ...

The Petitioner, pursuant to the above provisions of the law has sought both declarations of violations as well as an award of damages. In the Zeitun Case (supra), the Court rendered itself as follows on this aspect of the case;

“The Petitioner's plea to the Court is to award damages that would compensate the deceased's estate and Dependants as a result of the Respondents' unconstitutional actions. It is beyond doubt that compensatory damages are one of the reliefs the Court is empowered to grant under Section 84 of the former Constitution (See Wachira Weheire vs Attorney General Nairobi HC Misc. Appl. No.1184 of 2003 [2010] eKLR and Harun Thungu Wakaba vs Attorney General Nairobi HC Misc, Appl. No.1411 of 2004 [2010]eKLR.

The Petitioner's case is that the death of the deceased has robbed her and her family of their breadwinner. At the material time the deceased was a lorry driver who supported his family wholly. While the principles applicable to the ordinary civil law may be relevant in guiding the Court in awarding damages, under Section 84 of the former Constitution, the Court has wide discretion in awarding relief subject to the overall duty of the Court to ensure that the deceased's rights are vindicated. It is therefore not necessary to prove actual loss of dependency under the Fatal Accidents Act (Chapter 32 of the Laws of Kenya) or actual loss to the estate under the Law Reform Act (Chapter 26 of the Laws of Kenya) although the principles therein may provide some guidance as to the amount of damages.”

I wholly agree and would add that inReparations in Aloehoetoe vs Suriname 17 Hum. Rts. Q 541 (1995), the Inter-American Court stated that within domestic jurisprudence, it may be assumed that successors to wrongfully killed victims suffer real and moral damage and that the burden of proof is on the government to show that such damages do not exist.

Applying these principles to the present case, it is obvious that the Respondent has not only failed to respond to the Petition but has also failed to show that no damages are awardable to the Petitioner.

However, while general damages are certainly awardable, exemplary damages as a matter of the policy of this Court cannot be awarded in changed circumstances and where all the injuries complained of, form part of the same unlawful transaction - see Wachira Weheire (supra).

In the circumstances, the Petitioner is entitled to general damages only and as to quantum, I agree with the reasoning in Dominic Arony Amolo vs AG, Nairobi H.C. Misc.494/2003 that a global award in damages is appropriate and following Zeitun's Casewhose facts are almost similar to the present case, Kshs.3 Million is sufficient in the circumstances of this case.

I say so well aware that where a life is lost in the hands of agents of the State, no amount in damages, however high, will ever adequately heal the wounds of the deceased's survivors.

Conclusion

I have already given reasons why this Petition must succeed and so the final orders to be made shall be the following;

“(a) A declaration is hereby made that the deceased's fundamental rights and freedoms were contravened and grossly violated by the Respondent's Special Branch Police Officers who were Kenyan Government servants, agents and/or employees in its institutions on 4th November 1994 and for 35 days at various Police Stations and thereafter at Nyayo House Torture Chambers.

(b) A declaration is hereby made that the deceased's estate is entitled to the payment of damages and compensation for the violation and contraventions of his fundamental rights and freedoms.

(c) General damages in the amount of Kshs.3 Million under Section 84(2) of the Constitution of Kenya for the unconstitutional conduct by the Kenyan Government and its agents and/or servants is awarded to the Petitioner.

(d) The Petitioner shall have the costs of the Petition.”

Orders accordingly.

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

ISAAC LENAOLA

JUDGE

In the presence of:

Kariuki – Court clerk

Mr. Okindo for Petitioner

Mr. Wamotsa holding brief for Mr. Awino for Respondent

Order

Judgment duly delivered.

ISAAC LENAOLA

JUDGE