https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12093

Mungai v Attorney General & 2 others (Petition 108 of 2019) [2026] KEHC 12093 (KLR) (Constitutional and Human Rights) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 12093 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition 108 of 2019 B Mwamuye, J July 15, 2026 Between Mercy Njoki Mungai Petitioner and The Hon Attorney General 1st Respondent Inspector General of Police 2nd Respondent The Commissioner of Prisons 3rd Respondent Judgment INTRODUCTION 1.This Judgment determines the Petition dated 28th September 2018, though filed on 28th September 2019, wherein the Petitioner, Mercy Njoki Mungai, seeks redress for the alleged violation of the fundamental rights and freedoms of her deceased husband, the late John Mungai Waruiru. The Petition is anchored on the Constitution of Kenya, 2010, though it seeks remedies for violations allegedly perpetrated in 1986 under the now-repealed Constitution of Kenya (1969). 2.The gravamen of the Petitioner's case is that her husband was subjected to arbitrary arrest, illegal detention, torture, and inhuman and degrading treatment at the hands of State agents in June 1986, leading to his untimely death in 1988. The Respondents, through the Office of the Attorney General, have vehemently opposed the Petition, primarily contending that the Petitioner has failed to discharge the evidentiary burden required in constitutional litigation and that the suit is fatally defective due to inordinate and inexcusable delay. Background 3.The factual matrix of the present Petition is derived from the Petitioner's pleadings and the supporting documentation filed in support thereof. The Petitioner avers that on 9th June 1986, her husband, the late John Mungai Waruiru, was arrested at his place of work, namely the Kenya Railways Headquarters, by heavily armed police officers who allegedly subjected him to physical assault in the course of his arrest. It is further averred that following his arrest, the deceased was detained at Nyati House and subsequently at Nyayo House. 4.The Petitioner's case is that the deceased was held incommunicado from the date of his arrest on 9th June 1986 until his production before the court on 23rd June 1986. The period of fourteen (14) days between his arrest and arraignment forms the foundation of the Petitioner's claim of unlawful detention and alleged violation of Section 72(3) of the repealed Constitution. 5.The Petitioner further alleges that during the period of his detention, the deceased was subjected to severe physical and psychological torture. It is alleged that he was beaten, slapped, whipped, and compelled to sign a confession statement. The Petitioner further avers that the deceased was held in solitary confinement in a dark and dumb cell that was filled with sewage water, denied adequate food and water, and deprived of access to legal counsel, friends, and family. 6.The Petitioner contends that the deceased was subsequently tried, convicted, and sentenced to seven (7) years' imprisonment for allegedly distributing a seditious publication known as Mzalendo Mwakanya. It is further alleged that while serving his sentence, the deceased's health deteriorated as a result of the torture and deprivation he had allegedly endured while in custody. The deceased subsequently passed away on 5th May 1988. 7.The Petitioner instituted the present proceedings in 2019, being thirty-one (31) years after the alleged cause of action arising from the arrest and thirty-three (33) years after the death of her husband. The Respondents entered appearance and filed Grounds of Opposition dated 22nd February 2021, raising both preliminary and substantive objections to the Petition. The Petitioner's Case 8.The Petitioner's case, as distilled from the pleadings and the submissions, is that the Respondents' agents grossly violated the deceased's constitutional rights under the 1969 Constitution, specifically Section 72 (protection from arbitrary arrest and detention), Section 74 (protection from torture and inhuman treatment), Section 77 (right to a fair hearing), and Section 79 (protection from deprivation of property). 9.In her submissions, the Petitioner urged this Court to find that the arrest and detention of the deceased from 9th June to 23rd June 1986 without being produced in court was a direct violation of Section 72(3) of the repealed Constitution. Reliance was placed on the decision in Joan Akinyi Kabasellah & 2 Others vs. Attorney General [2014] eKLR, where the court held that a delay of 36 days in producing an accused person in court constituted a violation of Section 72(3). 10.On the question of the petition meeting the constitutional threshold, the Petitioner contended that her pleadings were framed with sufficient precision. She argued that the Petition clearly outlined the specific rights violated, the factual basis of the violations, and the remedies sought, thereby meeting the threshold as affirmed in Trusted Society of Human Rights Alliance vs AG & 2 others [2012] eKLR. 11.On the issue of delay, which the Respondents raised as a core ground of opposition, the Petitioner argued that claims for violations of fundamental rights and freedoms are not subject to the limitation periods set out in the Limitation of Actions Act, Cap 22 Laws of Kenya. She relied on the persuasive authority of Wachira Waheire vs Attorney General, High Court Misc. Case No. 1184 of 2003, where the court held that the provisions of the Public Authorities Limitations Act limiting the period for initiating actions against public authorities are inconsistent with the Constitution. Similarly, she cited Peter M. Kariuki v Attorney General [2011] eKLR for the proposition that a claim arising from a violation of constitutional rights is not statute-barred. The Petitioner argued that the delay of 31 years was not fatal to her claim, as the court has the discretion to hear matters of constitutional magnitude irrespective of the passage of time. 12.On the issue of costs, the Petitioner submitted that the Respondents were responsible for the violations and that she should be awarded costs as a successful litigant. She relied on the principles in Dominic Arony Amolo vs Attorney General, H.C. Misc. Appl. No. 494/2003, where the court awarded damages to deter repetition of breaches and to protect constitutional rights. The Respondents' Case 13.The Respondents oppose the Petition, relying on the Grounds of Opposition dated on 22nd February 2021 and their written submissions dated on 29th October 2024. 14.The Respondents' primary contention is that the Petition does not disclose any constitutional violations with the specificity required by law. They argued that the Petition fails to meet the constitutional test laid down in Anarita Karimi Njeru vs Republic [1979] KLR 154 because the Petitioner has not provided a clear and precise account of the manner in which the rights were violated. 15.On the issue of evidence, the Respondents submitted that the affidavit in support of the Petition is based on hearsay and lacks probative value. They argued that the Petitioner was not present when the alleged torture took place and therefore cannot testify to the events first-hand. The Respondents contended that the death certificate, which indicates the cause of death as pulmonary tuberculosis with pyo-thorax, contradicts the Petitioner's claim that her husband died as a result of torture. 16.The Respondents also strenuously objected to the Petition on the ground of inordinate delay. They submitted that the delay of 33 years between the events and the filing of the petition is inexcusable and prejudicial. They argued that the Respondent is unable to adequately defend the claim due to the passage of time, which has resulted in lost records, faded memories, and the death of potential witnesses. The Respondents distinguished the authorities cited by the Petitioner, arguing that even in constitutional matters, a plaintiff is expected to approach the court within a reasonable time. 17.The Respondents further submitted that the detention of the deceased was lawful under the repealed Constitution. It is their case that Section 83 and Section 85 of the 1969 Constitution, read together with the Preservation of Public Security Act, Cap 57, allowed for detention without trial when the Minister was satisfied it was in the interest of public security. They relied on the Court of Appeal decision in Koigi Wamwere vs Attorney General [2015] eKLR, where the court upheld the constitutional validity of such detentions under the repealed constitution. 18.On the claim for exemplary and punitive damages, the Respondents submitted that such damages are not awardable in the current political climate. Reliance was placed in the case of Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR, where the Court of Appeal declined to award exemplary damages, noting the heavy burden on the taxpayer and the improved human rights environment. 19.The Respondents consequently urged this court to dismiss the Petition in its entirety, with costs. Analysis And Determination 20.Having considered the Petition, the responses thereto, and the submissions advanced by the respective parties, this Court has identified the following three issues as falling for determination:i.Whether the Petition meets the legal and evidential threshold required for a constitutional petition and whether the Petitioner has established a violation of the deceased's constitutional rights.ii.Whether the Petition is fatally defective on the ground of inordinate and inexcusable delay.iii.What, if any, reliefs the Petitioner is entitled to, including the question of costs. Whether the Petition meets the legal and evidential threshold required for a constitutional petition and whether the Petitioner has established a violation of the deceased's constitutional rights. 21.The determination of this issue lies at the heart of the Petition. The Respondents have challenged the Petition on two fronts: first, on its technical sufficiency in terms of pleadings, and second, on the substantive insufficiency of the evidence presented. This Court will address both aspects sequentially. 22.On the issue of constitutional pleading requirements, the Respondents submitted that the Petition does not satisfy the threshold established in the seminal decision of Anarita Karimi Njeru v Republic (supra). In that decision, the Court articulated the foundational principle that a party invoking the Court’s jurisdiction under the Constitution is required to plead, with reasonable precision, the constitutional provisions alleged to have been violated, the manner in which such violations are alleged to have occurred, and the reliefs sought. The rationale underlying this requirement is to ensure that a respondent is sufficiently apprised of the case it is required to answer, thereby promoting a fair, orderly, and effective adjudication of constitutional claims. 23.The Court of Appeal, in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, expounded on this principle and held that the standard of precision required is not one of absolute rigidity, but rather one that requires a pleading to set out “reasonable particulars” of the claim. The Court observed that the requirement serves a constitutional purpose, namely, to ensure that the Court is not converted into a forum for the determination of generalized grievances or disputes lacking a proper legal foundation. 24.This Court has carefully examined the Petition. The Petitioner has cited specific provisions of the 1969 Constitution, namely Sections 72, 74, 77, and 79. The Petition alleges that these provisions were violated through unlawful arrest, prolonged detention without being produced in court, denial of access to counsel and family, exposure to torture and inhuman treatment, and a denial of a fair trial. Additionally, the Petitioner has attempted to provide a factual account of these events. While there is room for greater detail, the Court finds that the Petition sufficiently identifies the constitutional provisions in question, the actors (State agents), and the general nature of the alleged violations. The substance of the case is the mistreatment of the deceased in police custody. 25.However, this threshold of pleading is only the first step. A litigant must go beyond mere pleadings and adduce evidence to prove their allegations. This is where the Petitioner's case faces an insurmountable hurdle. The evidential burden in civil matters lies on the party who desires the court to give judgment in its favor. Section 107 of the Evidence Act, Cap 80 Laws of Kenya, provides that the burden of proof in any suit is on the person who would fail if no evidence at all were given on either side. This principle applies with full force to constitutional petitions. Although constitutional petitions are sui generis, the applicable standard of proof remains that of a balance of probabilities, unless the law expressly provides otherwise. Accordingly, the Court must determine whether the evidence placed before it establishes the alleged constitutional violations to that standard. 26.The Court in Hassan Ahmed Ibrahim v Kenya National Bureau of Statistcis & 2 others [2019] KEHC 4412 (KLR) reaffirmed this position, holding that in constitutional petitions, a party must not only plead the violation but also provide evidence to support the allegations. The court emphasized that while constitutional violations must be pleaded with precision, they must also be established by credible and admissible evidence, unsubstantiated allegations alone are insufficient to sustain a constitutional petition. In making the affirmation, the Court thus stated: -“ 32.It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it in order to succeed. In this regard, Section 107(1) of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”. It is therefore the legal duty of the Petitioner to prove by credible evidence the infringement of rights by the Respondents, and in the manner he alleges. The required standard which applies in civil cases as the present one in this regard is that of proof on a balance of probabilities. The evidentiary threshold in constitutional petitions was also stated by the High Court in Anarita Wairimu Njeru vs Republic [1979]eKLR 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 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 provision said to be infringed, and the manner in which they are alleged to be infringed.” 33.This threshold was re-stated in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR. The court in that case found that the Petitioner therein had made general and broad allegations of violation without specifying the precise provision of the constitution violated and enumerating the particulars of the manner of the alleged infringement. Further that such pleading falls below the required threshold of a constitutional petition and it is prejudicial to the defence because it does set out the issues for litigation and adjudication to enable the opposing party to respond adequately.” 27.In the instant case, although the supporting affidavit contains matters within the Petitioner's own knowledge, such as the arrest of the deceased, his subsequent disappearance, and matters she personally observed after his release, the allegations relating to the treatment allegedly meted out to the deceased while in police custody are founded principally on information conveyed to her by the deceased after his release rather than on her own personal knowledge. The supporting affidavit sworn by Mercy Njoki Mungai details what allegedly happened to her husband during his detention. It recounts events such as "he was kept in solitary confinement in a dark cell filled with sewage water" and "he was tortured by being beaten, slapped and whipped." However, a careful reading of the affidavit reveals that the Petitioner was not an eyewitness to these events. She was not present at Nyati House or Nyayo House. Her information is primarily derived from what her husband told her after his release, as well as information from the media (Daily Nation) and other sources. 28.To the extent that the affidavit seeks to establish the precise acts allegedly committed against the deceased while in police custody through statements attributed to the deceased himself, it constitutes hearsay evidence. Hearsay is a statement made otherwise than by a witness while giving oral evidence in court, which is tendered to prove the truth of the matters asserted therein. As a general rule, hearsay evidence is inadmissible under Kenyan law, save for the recognised statutory and common law exceptions, none of which the Petitioner has invoked. While the Court is alive to the statutory exceptions to the rule against hearsay, no evidential basis has been laid to bring the deceased's alleged statements within any of those recognized exceptionsAlthough rendered in the criminal context, the Court of Appeal's observations in Michael Mugo Musyoka v Republic [2015] KECA955 (KLR), are instructive on the limited evidential weight ordinarily accorded to uncorroborated hearsay evidence. The court had the following to say with regards to hearsay evidence: -“We have looked at the evidence on record. There is no evidence or testimony to prove that there was any contact between the genital organs of the appellant with that of the minor. We are of the considered view that the evidence of P was hearsay and did not carry much weight. We say so because she was not present at the house and did not witness what actually happened. She relied on what her daughter C had allegedly told her. Without the evidence of the said child or an eye witness we find that the prosecution did not prove that the appellant had intentionally and unlawfully indecently touched the child.” 29.In Mururu (Suing on behalf of the Estate of the Late Eustace Mururu Gatoto) v Attorney General [2024] KEHC 6833 (KLR), the court stated that: -“The petitioner bore the burden to prove the alleged violation of fundamental rights and freedoms to the requisite standard of proof, which is on a balance of probabilities, since such claims are by nature civil causes. (Deynes Muriithi & 4 others v Law Society of Kenya & another, SC Application No 12 of 2015; [2016] eKLR.)Having considered the evidence on record, it is clear to this Court, that the petitioner did not discharge the legal burden placed on her to prove the case against the respondent. That is, the petitioner did not adduce evidence to prove the fact that the deceased was arrested and detained. There was also no evidence that the deceased was tortured as the petitioner alleged.” 30.The Court is not unmindful that the deceased passed away before these proceedings were instituted and was therefore unavailable to testify. That circumstance does not relieve the Petitioner of the burden imposed by Sections 107 and 109 of the Evidence Act. In the absence of the deceased's testimony, the Court would ordinarily expect some independent corroborative evidence, whether documentary, medical, judicial, or testimonial, capable of lending support to the allegations. No such corroborative evidence was placed before the Court. 31.Consequently, the Court is left without direct evidence from the deceased, without testimony from any witness who observed the alleged acts of torture, and without independent documentary or medical evidence capable of corroborating the allegations contained in the Petitioner's affidavit 32.Furthermore, the cause of death is cited as pulmonary tuberculosis. The Petitioner argues that this was a result of the torture and deprivation the deceased suffered. This is a leap of logic that is not supported by the evidence. Questions of medical causation ordinarily require expert evidence, particularly where the asserted cause of death is not self-evidently connected to the alleged constitutional violation. The death certificate, which is the official medical document recording the cause of death, provides a specific medical diagnosis. There is no expert medical evidence, such as a post-mortem report or an opinion from a pathologist, linking the alleged torture to the development of tuberculosis. The court cannot make a medical determination on such a complex issue without expert testimony. 33.The Petitioner also relies on the decision in Joan Akinyi Kabasellah (supra) to support her claim of unlawful detention. While the legal principle is correct, that a person must be produced in court within 24 hours or 14 days for capital offenses, the factual matrix in that case is distinguishable. Unlike cases in which the allegations were supported by contemporaneous records or other corroborative material, the present Petition is not accompanied by police records, court proceedings, detention records, medical reports, or testimony from any witness capable of independently verifying the factual allegations upon which the constitutional claims are founded 34.Having carefully evaluated the evidence as a whole, the Court is not satisfied that the Petitioner has discharged the burden of proving, on a balance of probabilities, the constitutional violations alleged. While the Petition satisfies the threshold of constitutional pleading, the evidential foundation upon which it rests is inadequate. The allegations concerning the deceased's treatment in custody are founded substantially on second-hand accounts which are neither independently corroborated nor shown to fall within any recognized exception to the rule against hearsay. In the absence of credible corroborative evidence establishing the alleged unlawful detention, torture, and the causal nexus between the alleged mistreatment and the deceased's subsequent death, the Court is unable to grant the declaratory reliefs sought. The Petition must therefore fail Whether the Petition is fatally defective on the ground of inordinate and inexcusable delay. 35.The second issue for determination is whether the Petitioner's delay of 31 years in instituting this suit is fatal. The Respondents have argued that this delay is inordinate, inexcusable, and prejudicial to their ability to mount a defense. 36.While Article 2 of the Constitution of Kenya, 2010, declares that the Constitution is the supreme law and any other law inconsistent with it is void, this does not mean that a party has an unlimited time to bring a claim. The doctrine of laches is well established in law, including in constitutional matters. It is a principle of equity that a court will not assist a person who has been negligent in asserting their rights. 37.The Petitioner argues that the Limitation of Actions Act, Cap 22, does not apply to constitutional petitions. This is a correct statement of law. The Court in Wachira Waheire vs. Attorney General (supra) and Peter M. Kariuki vs. Attorney General (supra) held that the statutory limitation periods contained in Cap 22 and the Public Authorities Limitations Act are inconsistent with the Constitution to the extent that they seek to limit a party's right to seek redress for the violation of their fundamental rights. However, the absence of a statutory time bar does not mean that a petitioner can approach the court at any time, no matter how long after the event. 38.The court retains inherent discretion to reject a claim on the ground of laches. In Havi v Cabinet Secretary, Responsible For Matters Relating to Basic Education & 7 others Kenya Private Schools Association & 4 others (Interested Parties) [2024] KEHC 7735 (KLR), the High Court, while considering whether there had been inordinate delay in filing the petition, relied on the principle in Mwangi S. Kimenyi v Attorney General & another [2014] eKLR that inordinate delay should not be difficult to ascertain once it occurs, the litmus test being whether the delay leads the court to the inescapable conclusion that it is inordinate and therefore inexcusable. The Court thereafter held that the four-year delay in challenging the implementation of CBC, without any explanation, was inordinate and inexcusable. 39.The Petitioner's explanation for the delay is conspicuously absent from the record. There is no affidavit or submission explaining why she waited from 1988, when her husband died, until 2019 to file this Petition. The passage of 31 years is not a mere delay. It is a long hiatus that spans decades. In a claim of this nature, which turns on historical events, witness recollection, and contemporaneous records, such a prolonged delay substantially impairs the Respondents' ability to investigate the allegations and mount an effective defence. 40.The Court cannot ignore the practical consequences of instituting proceedings more than three decades after the events in question. The availability of witnesses, official records, and other contemporaneous evidence is inevitably affected by the passage of such an extended period of time, thereby occasioning obvious prejudice to the Respondents in investigating the allegations and mounting an effective defence. 41.The Court of Appeal in Mitei v National Social Security Fund Board of Trustees [2022] KECA 974 (KLR) was explicit on this point. The court held that while constitutional rights cannot be statute-barred, a party must bring their claim within a reasonable time. What constitutes a reasonable time depends on the circumstances of the case. The court noted that a long delay can be fatal to a case, even for constitutional matters, especially where it prejudices the respondent's ability to defend. In that case, the court highlighted the importance of having a living memory of events and documentary evidence for a fair trial. In arriving at the decision, the Court had the following to say: -“ 14.Even though there is no limitation period for bringing an action alleging violation of a party’s constitutional rights and freedoms, the court is entitled to consider whether the claim was lodged within a reasonable time. This Court in Wellington Nzioka Kioko v Attorney General [2018] eKLR cited with approval the finding of Majanja, J. in James Kanyita Nderitu vs A.G and Another Petition No. 180 of 2011 as follows: “Although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under ... the constitution, is entitled to consider whether there has been inordinate delay in lodging the claim. The Court is obliged to consider whether justice will be served by permitting a respondent, whether an individual or the State in any of it manifestations, should be vexed by an otherwise stale claim. Just as a petitioner is entitled to enforce its fundamental rights and freedoms, a respondent must have a reasonable expectation that such claims are prosecuted within a reasonable time.” 15.In Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR, this Court observed:“We reiterate the position that where there has been inordinate delay in bringing an action for violation of fundamental rights, appropriate facts must be placed before the court to enable the court exercise its discretion judicially, in accepting or rejecting the explanation for the delay, with the benefit of all information regarding the particular circumstances before it...Delay is an anathema to fair trial which is one of the key fundamental rights provided to all litigants under Article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in Article 159 that requires justice to be administered without delay, to allow a party who alleges violation of constitutional rights, to bring their action after undue inordinate delay, without any justifiable reason. For this reason, we find that the appellants’ action was properly dismissed.” 42.The prejudice occasioned by such delay is not merely theoretical. Indeed, the evidential deficiencies identified by this Court under the first issue illustrate the practical consequences of instituting proceedings after the lapse of more than three decades. The absence of contemporaneous documentary records, independent witnesses, and other corroborative material has materially impaired the Court's ability to ascertain the factual circumstances giving rise to the Petition and has correspondingly prejudiced the Respondents' ability to answer the allegations. 43.This Court is acutely aware of the historical context of the allegations. The events took place during the Moi era, a time of significant political repression in Kenya. This Court does not condone the actions of State agents during that period. However, the enactment of the 2010 Constitution created a new legal dawn, but it did not resurrect stale claims unless there is a compelling reason to do so. The Petitioner has advanced no reason, compelling or otherwise, for the delay. The filing of this suit is an afterthought, and to allow it to proceed would be an abuse of the court process. 44.Accordingly, and independently of the Court's findings on the evidential deficiencies of the Petition, this Court is satisfied that the unexplained delay of approximately thirty-one (31) years in instituting these proceedings was inordinate and inexcusable. Having regard to the length of the delay, the absence of any explanation for the same, and the prejudice occasioned to the Respondents in mounting an effective defence, the Court finds that the equitable doctrine of laches operates against the Petitioner's claim and provides a further basis upon which the Petition cannot succeed. What, if any, reliefs the Petitioner is entitled to 45.Having found that the Petitioner has failed to discharge the burden of proving the alleged constitutional violations and, independently, that the claim cannot be sustained on account of the inordinate and unexplained delay in instituting these proceedings, the Court finds that the Petitioner is not entitled to the substantive reliefs sought. These include the declarations of violation of constitutional rights and the claims for general, exemplary, and aggravated damages. The claim for damages is predicated upon a finding of liability, which the Petitioner has failed to establish in the present case. Conclusion 46.In conclusion, this Court finds that the Petition lacks merit. The Petitioner has failed to discharge the evidential burden required to prove the alleged constitutional violations on a balance of probabilities. The allegations concerning the treatment of the deceased while in custody are substantially founded on second-hand accounts which were not supported by independent corroborative evidence sufficient to establish the alleged violations. Furthermore, the delay of over thirty (30) years between the death of the deceased and the institution of these proceedings was inordinate and unexplained, and the Court is satisfied that the Petition cannot be sustained in the circumstances. 47.Accordingly, this Court makes the following final orders:a.The Petition is hereby dismissed in its entirety.b.Costs being discretionary, I order that each party do bear their own costs.Orders accordingly.File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JULY 2026.________________________BAHATI MWAMUYE MBSJUDGE