[2022] KEHC 1612 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

(Coram: A. C. Mrima, J.)

CONSTITUTIONAL PETITION NO. 314 OF 2019

BETWEEN

1. OTOLO MARGARET KANINI

2. SAFULA ABDI

3. CONSTANCE NTHAMBI MUTISO

4. DAMARIS WANGARI WANGUI

5. DAMARIS NJERI WANGUI

6. JANE NYAMBURA NDAI

7. BEATRICE AKOTH YONGO

8. BEATRICE MUSABYEMARIYA MUJAMBERE

9. NANCY WANJIKU KINUTHIA

10. ODILLIE WANJERI MUNYINYI

11. PHILOMENA WANJERI MUNYINYI

12. ROSEMARY MUTHONI NJUGUNA

13. MONICA WANJIRU WANJIKU

14. STELLA MUTHONI MUIRU

15. TERESIA WAIRIMU RUNGU

16. TRUPHENA I. MAGALASIA

17. GRACE WANJIRU NJUKI…………………………………PETITIONERS

VERSUS

1. THE ATTORNEY GENERAL

2. THE NATIONAL SECURITY COUNCIL

3. THE CABINET SECRETARY FOR INTERIOR AND

COORDINATION OF NATIONAL GOVERNMENT

4. THE NATIONAL INTELLIGENCE SERVICE

5. THE INSPECTOR GENERAL

OF NATIONAL POLICE SERVICE …………………..………RESPONDENTS

JUDGMENT

Introduction:

1. The 7th August, 1998 will remain in the annals of history as one of the darkest days in Kenya. It was the day the Embassy of the United States in Kenya, then situate within the Central Business District in Nairobi, was bomb-attacked by terrorists. Many people lost their lives, others were injured and families as well as the country was utterly devastated.

2. The Petitioners herein, Otolo Margaret Kanini, Safula Abdi, Constance Nthambi Mutiso, Damaris Wangari Wangui, Damaris Njeri Wangui, Jane Nyambura Ndai, Beatrice Akoth Yongo, Beatrice Musabyemariya Mujambere, Nancy Wanjiku Kinuthia, Odillie Wanjeri Munyinyi, Philomena Wanjeri Munyinyi, Rosemary Muthoni Njuguna, Monica Wanjiru Wanjiku, Stella Muthoni Muiru, Teresia Wairimu Rungu, Truphena I. Magalasiaand Grace Wanjiru Njuki variously described themselves as spouses and children of the victims of the said heinous terrorist attack. They claimed that, as a consequence of the attack, they suffered emotional pain, trauma and economic damage.

3. The Petitioners attributed the attack on a collective failure of the Respondents herein to forestall any and all preparatory activities that eventually led to the egregious attack.

4. On the basis of the foregoing, the Petitioners approached this Court claiming violation of their rights and fundamental freedoms. They also sought various remedies including declarations and compensation.

5. The Petition is opposed.

The Respondents:

6. The 1st Respondent is the Hon Attorney General. He is sued as the Chief Legal Adviser to the Government vested with the authority to defend civil suits against the Government.

7. The 2nd Respondent, The National SecurityCouncil,is an office established under Article 240 of the Constitution. It exercises supervisory control over national security organs.

8. The 3rd Respondent, The Cabinet Secretary for Interior and Coordination of National Government the Ministry of Internal Security and Provincial Administration is part of the executive responsible for, inter alia, the country’s internal security.

9. The 4th Respondent, The National Intelligence Service, is an office established under Article 242 of the Constitution. It is responsible for security intelligence and counter-intelligence to enhance national security.

10. The 5th Respondent, The Inspector General of National Police Service, is established under Article 245 of the Constitution. It exercises independent command over the National Police Service.

The Petition:

11. Twenty-one years after the heinous attack, the Petitioners instituted these proceedings. By a Petition dated 7th August, 2019 and supported by the respective Affidavits of the Petitioners all deponed to on 7th August, 2019, the Petitioners posited that the preparation and contrivance of the attack ought to have come within the knowledge and attention of the Respondents.

12. They claimed that the Respondents received intelligence with regard to the vulnerability of the American Embassy attack but failed, neglected and or refused to take requisite preventive and ameliorative actions.

13. They pleaded that the Respondents failed to appraise the risk faced by buildings adjacent to the then American Embassy as well as the risk facing pedestrians and motorists using roads and streets close to the said Embassy.

14. The Petitioners further averred that after the attack, the Respondents did not exercise their mandate to investigate and prosecute the terror attack to bring to book the perpetrators and eventually close the matter.

15. It was their case further that after the attack, the Respondents took no measure whatsoever to compensate the victims of the attack.

16. On the foregoing, the Petitioners posited that the Respondents failed to fulfil their respective obligations to respect, promote and fulfil the rights of its citizens under the Constitution and the law as well as under the regional and international instruments which are part of the Kenyan law.

17. In reference to President Uhuru Kenyatta’s State of the Nation Address of 2015 that announced the establishment of Kshs. 10 Billion Restorative Justice Fund meant to compensate victims of various human rights violations and historical injustices, the Petitioners averred that while the Fund has not been implemented, they fall in the category contemplated under the said Fund.

18. It was their case that the continued failure of the implementation of the directive to establish the Fund continues to occasion them further loss and damage.

19. The Petitioners averred that they were entitled to compensation from Government. They drew support from similar local and international incidences where the respective Governments compensated the victims as a result of violations of their respective constitutional rights and fundamental freedoms.

20. Some of the local and foreign examples cited by the Petitioners include compensation to victims of the 2007-2008 post-election violence, compensation for victims of bandit attacks in Kerio Valley, the United States of America’s Victim Compensation Fund for the September 11, 2001 World Trade Centre terrorist attack, the United Kingdom’s Criminal Injuries Compensation Scheme for blameless victims of terrorist attacks and other violent crimes, among others.

21. In asserting their rights and fundamental freedoms, the Petitioners anchored the Petition on Articles 2, 2(5), 19, 22(1), 22(2), 26, 27, 27(2), 28, 29(d), 43 and 258(1) of the Constitution.

22. The Petitioners described the manner of the violations by stating that failing to act on intelligence of imminent terrorism attack was a derogation of Articles 26, 27, 28, 29 and 43 and Sections 70, 71, 74 and 82 of the Repealed Constitution.

23. They averred further that the failure by the Respondent to prevent bombing of the American Embassy in Nairobi contravened the positive obligation to protect the enjoyment of their rights and fundamental freedoms.

24. The Petitioners posited that the State continues to violate their rights and fundamental freedoms by failing to set up the Compensation of Victims of Terrorism Fund under Section 49 of the Prevention of Terrorism Act, which recognizes State’s responsibility towards victims of terrorism.

25. With respect to international obligations, the Petitioners posited that the State failed its obligation under Sections 4 and 16 of the African Charter on Human and Peoples Rights (ACHPR) on the inviolability of human rights and enjoyment of best attainable state of physical and mental health, Section 2 of Part II and paragraph 79 of the International Covenant on Civil and Political Rights (ICCPR) which recognizes enjoyment of human right without distinction, Article 3 of Universal Declaration of Human Rights and its obligation under International Convention for the prevention of the Financing of Terrorism.

26. In the main, the Petitioners prayed for the following reliefs: -

1. A declaration that the Respondents have an obligation and responsibility towards the Petitioners and their loved ones to ensure the protection of their rights and freedoms as enshrined under Article 26,27,28 29 and 43 of the Constitution.

2. A declaration that the Respondents actions and inactions complained of offend, violate, transgress upon and or threaten to offend, violate and transgress upon the Petitioner’s loved ones right to life, equal protection of the law, human dignity and right to safety and security as enshrined under Article 26, 27,28 and 29 of the Constitution of Kenya respectively.

3. A declaration that the Respondents’ said actions and inactions complained of led to the violation of the Petitioners rights under Article 43 of the Constitution of Kenya, which violation continues unabated.

4. General damages for loss of lives.

5. General damages for the effect of the loss of life: -

a. Solatium (bereavement payment per person to cover emotional trauma arising out of the violent death of their spouses/parents);

b. Financial dependency;

c. Loss of parental services;

d. Loss of consortium; and

e. Loss of expectation

6. Costs of the Petition.

The Respondents’ case:

27. In response to the Petition, the Respondents filed a Preliminary Objection dated 19th March, 2021. They contested the propriety of the suit as follows: -

1. That the Petitioners have improperly instituted the proceedings on behalf of deceased persons rather than on behalf of the estate of deceased persons and therefore the suit is incompetent in law.

2. That the Petitioners herein lack loci-standi to institute proceeding on behalf of the estate of the deceased persons without letters of administration.

28. The Respondents further opposed the Petition through the Replying Affidavit of Karanja Kibicho, the Permanent Secretary in the Ministry of Interior and Co-ordination of National Government, deponed to on 4th February, 2020.

29. He decreed the lapse of 21 years before the filing of the Petition. He protested that the period is unexplained, unreasonable long and prejudicial to the Respondents. It was claimed that the passage of time impeded the Respondents from making a good defence more so since no explanation for the delay was given.

30. In response to the Petitioners’ claim that the Respondents’ inaction despite intelligence, Mr. Kibicho deposed that there were no specific actionable intelligence reports warning about the planned attacks. He stated that the magnitude of the attack was unprecedented and the information available at that time was of general nature about heightened terrorist activities in the region.

31. He deposed that the then Kenya Police Force handled the situation professionally by swiftly moving into the scene and saved many lives by facilitating the transfer of victims to Kenyatta National Hospital and other facilities.

32. It was his case that the operations to hunt down and apprehend the attackers commenced immediately and some of them including Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-Owhali and Wadih El Hage were subsequently arrested and handed over to the United States where they are still serving various sentences.

33. He deposed further that the mastermind, Osama Bin Laden was neutralized on 2nd May, 2011 and it is, therefore, not true that the Respondents had failed to investigate, apprehend and or prosecute those behind the terror attack.

34. He deposed that there was established National Disaster Emergence Fundalso known as Njonjo Fund which received and disbursed funds to various needs arising out of the terror attack in issue including burial and transportation expenses as well as compensation for minor injuries suffered by victims.

35. The Respondents protested further that the Petitioners failed to state and identify the rights with precision and to demonstrate how the alleged rights were infringed by the Respondents as required in law.

36. Speaking to the Restorative Justice Fund, he deposed that the said Fund was yet to be set up and that even if it was set up still the same would not take care of victims of terror attacks, but victims of past injustices perpetrated by the State that constituted violation of rights and fundamental freedoms, if any.

37. It was the Respondents’ case that terrorism is a global phenomenon not unique to Kenya which, in a bid to combat it, there is in place Article 240 of the Constitution and the appropriate security laws which established the National Counter Terrorism Centre that continuously develops and updates counter-terrorism strategies and policies, adoption and operationalization of multiagency strategy approach towards counterterrorism, establishment of Anti-terrorism Police Unit (ATPU) to counter and setting up of RECCE response teams.

38. It was deposed further that other counter-terrorism measures developed include hosting of the Eastern Africa Police Chiefs Co-operation Organization (EAPCCO) and International Criminal Police Organization (INTERPOL) Regional Bureaus for East Africa.

39. He deposed that the Victims of Terrorism Fund was yet to be operationalized since the Government had not appropriated funds neither had it received any grant or donation to support the fund under the Prevention of Terrorism Act.

40. With respect to the Petitioners’ claim of violation of International Convention for the Suppression of the Financing of Terrorism, it was deposed that the Convention was ratified in 2003, which was 5 years post the attack. As such, the convention could not be applied retrospectively.

41. On the foregoing, he stated that the Petition was misconceived, incompetent, bad in law and an abuse of Court process.

42. The Respondents prayed that the Petition be dismissed or struck out with costs.

The Petitioners’ submissions:

43. In its written submissions dated 3rd November 2020, the Petitioners opposed the Respondents’ Preliminary Objection by asserting that under Article 20, 21, 22(1), (2) and 258 they had the obligation to respect uphold and defend the Constitution by instituting these proceeding and similarly, the Court had an obligation to give effect to a right or fundamental freedom.

44. On the aspect of lapse of time, the Petitioners submitted that there is no limitation with respect to Constitutional Petitions alleging violation of fundamental rights. Reference was made to the decision in Edward Akong’o Oyugi & 2 Others -vs- The Attorney General (2019) eKLR where it was observed that;

…there is no limitation with respect to constitutional petitions alleging violation of fundamental rights…..a question whether the Respondent was under a duty to adduce evidence either by affidavit or oral evidence and explain how he was prejudiced as a consequence of the delay.

45. In reiterating violation of rights under Article 26, 27, 28, 29,and 43 of the Constitution, it was submitted that the Respondents; failure to prevent the bombing was a derogation of its positive obligation to protect the enjoyment of their rights.

46. Reliance was placed on the decision in Paul K. Waweru & 4 Others -vs- The Attorney General & 2 Others (2016) eKLRwhere state was held accountable for the 2007-2008 post-election violence in the following manner;

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. In the case of CHARLES MURIGU MURIITHI & 2 OTHERS –VS- ATTORNEY GENERAL 2015 eKLR, the court held as follows

“it is therefore our finding that the State through its security agencies, including the Police, has a positive obligation and duty to facilitate and create a peaceful environment in which rights enshrined in the Constitution, including the right to security of the person and to property, would be freely and fully enjoyed by persons within its jurisdiction”.

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.

In the same CHARLES MURIGU MURIITHI case the court went on to hold 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 the 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 or deliberately, failed to act on such information leading to a violation of the rights protected under the Constitution”.

47. On entitlement to damages for violation of their rights, this Court was referred the decision in Intraspeed Logistics Ltd. & 15 Others -vs- Commissioner for Police & Another (2018) eKLRand the one inFlorence Amunga Omukhanda & Another -vs- The Attorney General & 2 Others (2016) eKLR.

48. The Petitioners submitted that the Respondent abdicated their responsibility in compensating the families affected. It claimed further that the existence of compensation of victims of terrorism fund under The Prevention of Terrorism Act was acknowledgment by Government of its responsibility to protect citizens where it fails to do so.

49. In conclusion, the Petitioners claimed that they were entitled to compensation. They prayed that the Petition be allowed.

The Respondents’ submissions:

50. In support of the Preliminary objection and the Replying Affidavit, the Respondents filed written submission dated 6th August, 2021.

51. They submitted that there were two issues for determination being whether the Petitioners wrongly instituted the proceedings on behalf of the deceased persons rather than on behalf of the estate of the deceased persons and whether the Respondents violated any of the rights and fundamental freedoms of the Petitioners.

52. On the first issue, it was submitted that the estate of a deceased person can only be represented in any legal proceedings by a person who is authorized to do so on behalf of the estate and since the Petitioners brought the Petition in their personal capacities, they are not possessed of the requisite locus standi.

53. The High Court decision in Vikash Kamalkumar Devishi Shah -vs- Abdalaman & 3 Others (2021) eKLR was relied on when the Court observed inter alia: -

...…Where a suit is commenced without letters of administration in respect of a deceased estate, such a suit is null and void ab initio and cannot be cured by a party subsequently obtaining letters of administration….

54. Further support was found in Dishon Muthama Nzina & 26 Others -vs- Attorney General & 7 Others (2018) eKLR and in Mteke Munachi & Another -vs- Abdalla Ngoka Mbudzya & 9 Others(2018) eKLR where the High Court observed as follows respectively: -

… In law one can only represent the estate of a deceased person when a grant of representation has been made in respect of the estate of such deceased under the Law of Succession Act…

… in my view, therefore, while the Petitioners might have been actuated by a genuine desire to preserve the estate of the deceased grandfather, they ought to have obtained the necessary authority before filing this Petition.

55. It was, therefore, submitted that the Petitioners were suing on behalf of deceased persons but did not obtain any letters of administration, the requisite legal authority clothing them with locus standi.

56. On the second issue on whether there was violation of rights and fundamental freedoms, it was submitted that the Petitioners failed to demonstrate how any of their alleged rights were violated. To that end, support was found in Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR and in David Gathu Thuo -vs- Attorney General & Another (2021) eKLR where in the latter case the Court observed thus: -

…. Looking at the Petitioner’s pleading, the evidence as well as the submissions of the parties, it is my considered view that he Petitioner has not met the requirements of a Constitutional Petition. Although the Petitioner has pleaded violation of the Constitution, he has not demonstrated to the required standard how his individual rights and fundamental freedoms were violated, infringed or threatened by the Respondent. He had not adduced any evidence to demonstrate the alleged violations.

57. The Respondents further relied on Titus Barasa Makhanu -vs- Police Constable Simon Kinuthia Gitau No. 83653 & 3 Others (2016), Tran safaris Sacco Limited & Another -vs- Classic Luxury Shuttle & 2 Others(2019) eKLR, Gregory Magara -vs- University of Nairobi & Another (2017) eKLR to emphasize that the Petitioners were unable to demonstrate or substantiate that there was a right that was either violated or infringed upon.

58. As regards failure to act in order to forestall the terrorist attack, it was submitted that there was no actionable intelligence and when the attack occurred, it was handled professionally.

59. In rebutting the prayer for damages, reference was made to Charles Murigi Muriithi & 2 Others -vs- Attorney General (2015) eKLR where the Court declined the award of damages. It observed as follows: -

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 the 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 or deliberately failed to act on such information leading to a violation of the right protected under the constitution.

Despite all the claims made, the Petitioners failed to adduce any tangible evidence to prove any of the above allegations. They did not produce as evidence the Waki Commission Report which if produced would have strengthened their case.

In addition, the Petitioners did not also avail any evidence to substantiate their claims that any of them telephoned Eldoret Police Station at around the time their homes were about to be attacked or that there were six police officers in the vicinity of the attack who did nothing to help.

60. Reliance was further placed on the Court of Appeal in Civil Appeal 258 of 2015, Charles Murigi Muriithi & 2 Others -vs- Attorney General (2019) eKLR, where the Court denied the Appellants general and special damages for losses arising from violations of their alleged constitutional rights during the 2007 Post-election violence in the following way: -

….. We think ourselves that the mere fact that an individual under section 70 of the former Constitution was guaranteed the right to life, liberty, security of the person and the protection of the law; the protection for the privacy of his home and other property and simply because the police under section 14 of the repealed Police Act are enjoined to ensure the maintenance of law and order, the preservation of peace, the protection of life and property, the prevention and detection of crime, that per se does not impose liability on the Government for damages caused to a victim of mob violence or civil disorder. To hold otherwise will be to introduce the concept of strict liability and raise the bar of Government responsibility to a utopian level. It will in effect impose on the Government responsibility for all types of criminal acts in which the victims are injured, lose lives or property.

In this dispute the police were accused of failure to prevent the attacks before they occurred or to stop them. No doubt the best and most useful activity that the police can carry out is crime prevention. If crimes are successfully prevented before they occur, the costs and suffering associated with the effects of crime can be avoided or significantly reduced. But the reality the world over, even in the most developed nations, crime prevention is a mirage. That is why we have on the rise terrorist attacks, robberies and sexual offenses against children, among many other criminal acts.

The Government, in the context of the case before us did take proactive steps under section 14 aforesaid through the stages of investigation, apprehension and prosecution of the perpetrators of some of those involved in the post- election violence as detailed in the respondent’s evidence and submissions.

We reiterate that the attacks were spontaneous and sporadic. Though there had previously been violence in nearly every election cycle, there have never been one in the magnitude witnessed in 2007.

61. On the basis of the foregoing, it was submitted that no evidence was adduced to demonstrate that the State had prior intelligence before the 1998 bombing and that there was no failure by Government to protect its citizenry against terrorism.

62. As regard the violation of Article 43, it was submitted that there was no evidence to demonstrate the same. Support was sourced from National Gender and Equality Commission -vs- The Cabinet Secretary for Labour and Social Security & Another (2016) eKLR.

63. In the end, it was urged that the Petition was unproved and ought to be dismissed.

Issues for Determination:

64. From the reading of the documents filed in this matter, the following issues arise for determination: -

(a) The validity of the Preliminary Objection.

(b) Depending on (i) above,the principles of constitutional interpretation.

(c) Whether the Respondents violated the Petitioners’ rights and fundamental freedoms under Articles 26, 27, 28, 29 and 43 of the Constitution.

(d) What remedies ought to issue, if any.

65. I will henceforth deal with the issues in seriatim.

Analysis and Determinations:

(a) The validity of the Preliminary Objection:

66. Preliminary Objections, as a matter of principle, are considered only if they raise pure questions of law capable of disposing of the dispute conclusively at the earliest stage. If is its established that such an objection contains contested factual issues liable to evidentiary proof, it must be rejected from the outset.

67. In Petition No. E043 of 2021, Gladys Omato -vs- Independent Electoral and Boundaries Commission [2021] eKLR, this Court defined and set out the legal principles guiding preliminary objections. The Court observed thus: -

14. Law, J.A. in Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696 had the following to say: -

So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded or which raises by clear implication out of pleadings, and which if argued as a preliminary point, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration.........

...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.

15. In John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR, the Court held that: -

The position in law is that a Preliminary Objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the Preliminary Objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable Preliminary Objection on a point of law.

16. Ojwang, J (as he then was) in Oraro -vs- Mbaja (2005) KLR 141 where after quoting the statement of Law, JA. in the Mukisa Biscuits case (supra) went on to state that: -

A 'Preliminary Objection' correctly understood is now well defined as and declared to be a point of law which must not be blurred by factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a Preliminary Objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point....

Anything that purports to be a Preliminary Objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence......

17. In Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, it was opined that, while Courts are cautioned against the purported use of contested facts in determining preliminary objections, they are at liberty to look at the pleadings and other relevant in documents on the record. It was observed thus: -

…In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion…

68. This Court now returns to the contents of the objection. The Respondents’ two-pronged objection is that the suit is incompetent for having been instituted on behalf of deceased persons rather than on behalf of the estate of the deceased persons.

69. It is also the Respondents’ case that the Petitioners lack loci-standito institute the suit on behalf of the estate of deceased persons without Letters of Administration.

70. The factual basis of the dispute is not disputed. The Respondents acknowledge that there was a terrorist attack as averred and that there were fatalities, some of them, the Petitioners’ parents, spouses, siblings, among others.

71. The Petitioners on their part do not contest the fact that the basis of the Petition was the fact that their kins lost their lives during the bomb attack in issue.

72. To that end, and on the basis of the consensus on the facts, the requirement that a preliminary objection ought not to contain contested factual issues is met.

73. The second limb of the Preliminary Objection is a corollary of the foregoing. The Respondents contended that since the Petitioners were suing on behalf of deceased persons, their failure to take out Letters of administration strip them of the loci-standito sustain the suit.

74. By definition in general, locus-standi is the right to bring an action before a Court of law or any other adjudicatory forum. Such right is an entitlement created by the law. Therefore, the issue of locus standi is a pure question of law. It is also a fact that the issue has the potential of disposing the entire matter if sustained.

75. The above yields that the Preliminary Objection passes the threshold of raising uncontested facts and pure question of law capable of disposing the dispute preliminarily.

76. This Court will, hence, consider its merits.

77. What pits the parties herein at the extreme ends of the divide is the lack of Letters of administration and, hence, the alleged lack of loci-standi.

78. The Petitioners’ position was that they had the requisite loci-standi by virtue of Article 22(1) and (2) of the Constitution.

79. Conversely, the Respondents contended that the Petitioners ought to have taken out Letters of administration for purposes of instituting the suit.

80. The foregoing positions necessitates a closer look at the significance and implication of Letters of administration in sustaining human rights claims in light of the principle of locus-standi.

81. The Black’s Law Dictionary,9th Edition defines locus standi at page 1026 as follows:

The right to bring an action or to be heard in a given forum.

82. In Petition No. E008 of 2020, Ann Kioko & 2 Others -vs- Kenya Medical Practitioners and Dentists Council & 6 others(unreported) this Court discussed locus standi as hereunder: -

41. The Court of Appeal in Mombasa Civil Appeal No. 75 of 2016, Juletabi African Adventure Limited & another -vs- Christopher Michael Lockley [2017]eKLR referred to its earlier decision in Alfred Njau & 5 others -vs-City Council of Nairobi [1983] eKLR where locus standi was described as follows: -

… The termlocus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding….

42. Articles 22 and 258 of the Constitution are the anchor provisions on locus standi. Article 22 provides the right of every person to institute proceedings whenever a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. Article 258 roots for every person’s right to institute proceedings that the Constitution has been contravened or is threatened with contravention. In both instances, such proceedings may be instituted by the aggrieved party on its own interest, by a person acting on behalf of another person, on behalf of a class of people, in public interest or by an association acting on behalf of its member or members.

43. The Supreme Court in Advisory Opinion Reference 1 of 2017, Kenya National Commission on Human Rights -vs- Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR discussed the dynamics of locus standi. It referred to its earlier decisions in Reference No. 1 of 2013, in the Matter of the National Gender and Equality Commissionand Constitutional Application Number 2 of 2011, Re The Matter of the Interim Independent Electoral Commission. Although the Court dealt with the factors to be considered regarding who may commence a suit before the Supreme Court in seeking an advisory opinion pursuant to Article 163(6) of the Constitution, I find that the principles therein remain largely applicable to the aspect of locus standi under Articles 22 and 258 of the Constitution. The Court stated as follows: -

… the Court must always consider whether the party seeking to move it, falls within the categories of parties decreed as having such standi by the Constitution……

44. The Court of Appeal inNairobi Civil Appeal No. 290 of 2012Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR discussed the matter as follows: -

27. …this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the Courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process.

…… We hold that in the absence of a showing of bad faith as claimed by the Appellant, without more, the first Respondent had the locus standi to file the Petition. Apart from this, we argue with the Superior Court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution....

28. It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some specific interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22(3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013. ... “the Mutunga Rules” to inter alia, facilitate the application of the right of standing...... The rules reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated in infringed or threatened has a right of standing and can institute proceedings as envisaged under Article 22(2) and 258 of the Constitution.

29. It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reasons of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the Court for relief, any member of the public can maintain an application for appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution.

41. This Court has carefully assessed the requirement of locus-standithrough the lenses of Articles 22 and 258 of the Constitution and The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereinafter referred to as ‘the Mutunga Rules’).

42. Unlike before the advent of the prevailing and new constitutional order, the bar on locus standi is not set that high.

43. Speaking to the enforcement of the Bill of Rights and the Constitution, Articles 22 and 258of the Constitution provides that every person has the right to institute such Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened or that the Constitution is violated or infringed or is threatened with violation or infringement.

44. In addition to persons acting in their own interest, the Constitution provides other ways in which competent proceedings may be instituted on behalf of others. It provides that Court proceedings may also be instituted by a person acting on behalf of another person who cannot act in their own name, or by a person acting as a member of, or in the interest of, a group or class of persons. Persons acting in the public interest may also institute competent proceedings. There is also the category of associations where a person may act in the interest of one or more of the associations’ members.

45. It is on such clear provisions of the Constitution that Courts have severally held that under the new constitutional dispensation, the strict rules on locus standi have been greatly relaxed and Courts have allowed suits to be instituted by persons on their behalf.

46. The instant Petition, however, introduces a new dimension to the subject of locus standi. It interrogates whether allegations of violation of rights and fundamental freedoms can be successfully asserted by dependants of deceased persons without the dependants first obtaining requisite Letters of Administration on behalf of the estates of the said deceased persons.

47. To start off the discussion is a general look at the legal parameters of Letters of Administration.

48. The appropriate place for Letters of Administration is in the realm of the Law of Succession. Section 3of the Law of Succession Act, Cap. 160 of the Laws of Kenya, defines an "administrator" and ‘representation’ as follows: -

‘administrator’ means a person to whom a grant of letters of administration has been made under this Act.

‘representation’ means the probate of a will or the grant of letters of administration;

49. According to Section 66 of the Law of Succession Act, the order of priority as to whom Letters of Administration is granted is set out as follows: -

66. Preference to be given to certain persons to administer where deceased died intestate.

When a deceased has died intestate, the Court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

a) surviving spouse or spouses, with or without association of other beneficiaries;

b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

c) the Public Trustee; and

d) creditors:

50. Letters of Administration are, therefore, granted to persons who in one way or the other have interests in the affairs of a deceased person who died intestate or without a will. The interests may differ. As we shall see latter, there are, however, some instances which do not call for such letters of administration.

51. In order to spruce up the foregoing, I find persuasion in Vikash Kamal Kumar Devishi Shah -vs- Abdalaman & 3 Others (2021) eKLR, Dishon Muthama Nzina & 26 Others -vs- Attorney General & 7 Others (2018) eKLR and in Mteke Munachi & Another -vs- Abdalla Ngoka Mbudzya & 9 Others (2018) eKLR to the effect that, letters of administration empower or donates to a person the legal standing to administer or distribute the estate of a person that died intestate.

52. Coming back to the dispute at hand, a careful consideration of the Petitioners’ case reveals that the Petitioners instituted the proceedings in order to enforce their own rights under the Constitution. They, however, alleged such violations on the basis of the loss of their kins through the bomb attack. In other words, the Petitioners are in Court seeking to enforce their own rights and not the rights of their deceased kins although the basis of their claims is the loss of those kins through the attack.

53. To that end, the remedies of declarations and compensation are limited to the Petitioners and not on behalf of the deceased kins. In essence, the Petition is not brought for and on behalf of deceased persons, but it is founded by persons who are alive and call upon the Court to decree violation of their individual rights and fundamental freedoms.

54. In such instance, therefore, the Petitioners do not require any Letters of Administration to institute their own claims. The Petitioners are not dead and neither have they brought the claims on behalf of their deceased kins. The Respondents’ position on the objection is, hence, misconceived, unfounded and for rejection.

55. Having said so, suffice to add that it is imperative at this point in time to look at another dimension on this matter. The new parameter is on what the position would be had the Petitioners sought to enforce the rights and fundamental freedoms of their deceased kins and further sought compensation on their behalf and on behalf of their estates.

56. There is no doubt that the rule of the thumb is that any claim for the administration of the estate of a deceased person including obtaining compensation on behalf of the deceased person must be premised on a grant of Letters of Administration obtained prior to instituting the claim. However, when such a claim is by way of a constitutional Petition, two scenarios arise.

57. The first scenario is when the Petition does not relate to the administration and the affairs of the estate of a deceased person. Such Petitions may generally seek, for instance, declarations that the rights and fundamental freedoms of the deceased were violated.

58. In such a case, such a Petition may be sustained without the necessity of a grant of a Letters of Administration. The reason thereof is that, such declarations and no more, do not necessarily impact on the administration of the estates of the deceased person. Therefore, a Petition which does not seek to in any manner administer the estate of a deceased person does not require the grant of Letters of Administration prior to its institution. Needless to say, Petitions may also be instituted in public interest and it will be a tall order calling upon the defenders of public interest to obtain such grants.

59. The second scenario is when the Petition seeks such reliefs as contemplated in the first scenario and further has a bearing on the administration of the estate of the deceased person. An example at hand is when the Petition seeks several reliefs including those on the administration of the estate of a deceased person and compensation on behalf of a deceased person.

60. In such a case, the Court must carefully examine the pleadings for it would have limited jurisdiction in that matter. The jurisdiction will be limited to those reliefs sought which are not part of the administration of the estate. However, the Court will not deal with the part of the Petition dealing with the administration of the estate. For instance, a Court may find that the rights and fundamental freedoms of a deceased person were infringed. The Court may even go further to assess the appropriate compensation for the violations. However, that will be the end of the jurisdiction of the Court unless the Petitioner holds a grant of Letters of Administration.

61. In the event the Petitioner does not hold any grant of Letters of Administration, the Court after assessing the appropriate compensation must decline to enter judgment in favour of the Petitioner. The Court should instead make an order that the compensation be paid into the estate of the deceased.

62. Having said so, I must, however, clarify that the compensation as a relief under constitutional Petitions is usually limited to the extent of the violation of the rights and fundamental freedoms at hand. It is not compensation akin to that under the Law Reform Act, Cap. 26 of the Laws of Kenya or the Fatal Accidents Act, Cap. 32 of the Laws of Kenya.

63. To buttress the foregoing, I will refer to the Court of Appeal where the Court went into great detail in discussing the aspect of compensation in constitutional Petitions.

64. The Court of Appeal in Civil Appeal 98 of 2014,Gitobu Imanyara & 2 others v Attorney General[2016] eKLR, discussed the legal principles guiding the making of awards in instances where violations of rights and fundamental freedoms are proved. The Court remarked that: -

Consistent with the above judicial experience and philosophy, it seems to us that the award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just “according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements.The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration. Public policy considerations is also important because it is not only the petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.

65. Later, the Court of Appeal again dealt with the issue of damages for violations of rights and fundamental freedoms in Lucas Omoto Wamari v Attorney General & another [2017] eKLR. This is what the Court stated: -

38. The trial judge made declarations that the appellant’s fundamental rights and freedoms were violated. The question that arises is whether the trial judge awarded any damages in regard to these violations. It was posited that the award of general damages of Kshs. 500,000/= that was made by the trial judge was an all-inclusive figure. Our perusal of the judgment (at paragraph 37 and 38), reveals that the award of Kshs. 500,000/= was in regard to the personal injuries suffered by the appellant from the gun-shot wound, as well as Kshs. 120,000/= for future medical expenses for the same injuries, and Kshs. 53,106/= being special damages incurred as medical expenses again for the same injuries. Except for declining to award exemplary damages, the trial judge did not make any reference to the violations relating to the appellant’s fundamental rights and freedoms in his assessment on the issue of damages.

39. In his prayers in the plaint the appellant not only prayed for declarations but at prayer (vi) & (vii) specifically prayed for general damages for violations of his fundamental rights and freedoms. Mere declarations without any specific award of damages do not vindicate the appellant neither do they convey a deterrent message regarding the sanctity of the Constitution and the need for protection of fundamental rights and freedoms. Therefore, the omission to make a specific award for these violations, was an error that justifies the intervention of this Court.(Emphasis added).

66. A reading of the full judgments in the above decisions will enrich one’s understanding of the principle of compensation in constitutional Petitions.

67. In sum, this Court finds and hold that: -

(i) Constitutional Petitions seeking the enforcement of rights and fundamental freedoms under the Bill of Rights on the basis that the Petitioner’s alleged violation of the rights and fundamental freedoms were subsequent to the death of a third party or third parties do not require grant of Letters of Administration of the estate of that third party prior to their institution or at all.

(ii) A constitutional Petition which does not seek to in any manner administer the estate of a deceased person does not require the grant of Letters of Administration prior to its institution or at all.

(iii) Any compensation arising from the violation of rights and fundamental freedoms of a deceased person forms part of the estate of that deceased person regardless of whether or not the constitutional Petition was instituted by a holder of a grant of Letters of Administration in respect to the estate of that deceased person.

(iv) Compensation as a relief under Article 23(3)(e) of the Constitution is limited to the extent of the violation of the rights and fundamental freedoms in issue.

68. Returning to the objection at hand, since the Petition herein seeks the enforcement of the individual rights and fundamental freedoms under the Bill of Rights of the Petitioners subsequent to the death of third parties, the requirement for the grant of Letters of Administration of the estate of those third parties prior to the institution of the Petition does not arise.

69. As a result, the objection is not merited.

70. With such a finding, a consideration of the next issue now follows.

(b) The principles of constitutional interpretation:

71. This issue is aimed at laying a solid basis for the consideration of the rest of the issues in this matter given that the Petition calls for the interpretation of the Constitution in light of the circumstances of this matter.

72. The Court of Appeal in Speaker of the National Assembly of the Republic of Kenya & another v Senate of the Republic of Kenya & 12 others(Civil Appeal E084 of 2021) [2021] KECA 282 (KLR) (Civ) (19 November 2021) (Judgment) endeavoured a fabulous discussion in the manner a Court ought to approach the subject of constitutional interpretation. The Court yielded as follows: -

42. Our starting point in this regard is Article 259 of the Constitution, which obligates us to interpret the Constitution in a manner that: -

(a) promotes its purposes, values and principles;

(b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

(c) permits the development of the law; and(d)contributes to good governance.”

43. It is notable in this respect that constitutional interpretation includes both interpretation and construction. As explained by Vincent Crabbe in his text Legislative Drafting: Volume 1 at pages 231 to 233, interpretation entails discovering the meaning of words used in a statutory or other written document, and is of various types. Authentic interpretation is used when the meaning of a word is expressly provided for in the document; usual or customary interpretation when based on accepted usages of the word; doctrinal, when it is based on the grammatical arrangement of the words in a sentence; and logical, when based on the intention of Parliament. Crabbe also pointed out that logical interpretation can be liberal or strict.

44. Construction of a legal provision on the other hand is wider in scope than interpretation, and is directed at the legal effect or consequences of the provision in question. Interpretation must of necessity come before construction, and having ascertained the meaning of the words, one construes them to determine how they fit into the scheme of the law or legal document in question. Crabbe in this respect opines that a Constitution is in this respect different from an Act of Parliament, and describes it as a living organism capable of growth and development. In his words “a constitution is a mechanism under which laws are made, and not a mere Act which declares what the law should be”

45. We are persuaded by this explanation, and indeed the approach suggested therein has been adopted by the Kenyan Courts. A holistic and purposive interpretation of the Constitution that calls for the investigation of the historical, economic, social, cultural and political background of the provision in question has been consistently affirmed by the courts. The Supreme Court in this respect explained the approach in constitutional interpretation inCouncil of Governors vs The Attorney General and 7 Others [2019] eKLRas follows:

“[42] Under Article 2(1), the Constitution is the Supreme law of the land. Article 259 of the Constitution then gives the approach to be adopted in interpreting the Constitution, basically in a manner that promotes its purposes, values and principles. Suffice it to say that in interpreting the Constitution, the starting point is always to look at Article 259 for it provides the matrix, or guiding principles on how it is to be interpreted and then Article 260 where specific words and phrases are interpreted. It is imperative to note that while Article 259 deals with construing of the Constitution and outlines the principles that underpin that act; Article 260 deals with interpretation, that is, it is explicit in assigning meaning to the words and phrases it addresses. Hence the opening words in that Article are: “In this Constitution, unless the context requires otherwise-”.[43]Consequently, in search of the meaning assigned to some words and phrases as used in the Constitution, one needs to consult Article 260 to find out if that particular term or phrase has ALREADY been defined. It is only where the same has not been defined that the Court will embark on seeking a meaning by employing the various principles of constitutional interpretation.….”

46. The various principles of constitutional interpretation have also been the subject of different decisions of this Court and the Supreme Court.In Re the Matter of Kenya National Commission on Human Rights [2014] eKLR, the Supreme Court considered the meaning of a holistic interpretation of the Constitution, and stated:

“[26] But what is meant by a ‘holistic interpretation of the Constitution’? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.”

47. This view was also expressed by the Supreme Court inCommunications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others, [2015] eKLR, that “the Constitution should be interpreted in a holistic manner, within its context, and in its spirit.”

48. A purposive interpretation on the other hand acknowledges that the meaning of language is imprecise, and measures words against contextual, schematic, and purposive considerations. Aharon Barak in the text

“Purposive Interpretation in Law” at page 111 explains that:

“According to purposive interpretation, the purpose of a text is a normative concept. It is a legal construction that helps the interpreter understand a legal text. The author of the text created the text. The purpose of the text is not part of the text itself. The judge formulates the purpose based on information about the intention of the text’s author (subjective purpose) and the “intention” of the legal system (objective purpose).”

49. As such, the purposive interpretation avoids the shortcomings of the literal approach, namely absurd interpretations or those that appear to run counter to the purpose and functioning of the legislative regime. The Supreme Court of Kenya in the case ofGatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others, [2014] eKLR, confirmed that a purposive interpretation should be given to statutes so as to reveal their true intention. The Court observed as follows:

“In Pepper vs. Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the Court is not to be held captive to such phraseology. Where the Court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical context underpinning the legislation. The learned Judge thus pronounced himself:

‘The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted’.”

50. The persuasive decision of this Court in the case ofCounty Government of Nyeri & Another v Cecilia Wangechi Ndungu [2015] eKLRis also illuminating, and it was held therein that:

“Interpretation of any document ultimately involves identifying the intention of Parliament, the drafter, or the parties. That intention must be determined by reference to the precise words used, their particular documentary and factual context, and, where identifiable, their aim and purpose. To that extent, almost every issue of interpretation is unique in terms of the nature of the various factors involved. However, that does not mean that the court has a completely free hand when it comes to interpreting documents; that would be inconsistent with the rule of law, and with the need for as much certainty and predictability as can be attained, bearing in mind that each case must be resolved by reference to its particular factors.”

51. The Constitution in this respect provides the purposes that should guide the Courts in interpreting it in Article 259, including the purpose of the specific provisions, and broader rule of law and good governance objectives.

52. It is with these principles in mind that we shall proceed to consider the issues raised in this appeal.

73. With such a profound basis on constitutional interpretation, the next issue follows.

(c) Whether the Respondents violated the Petitioners’ rights and fundamental freedoms under Articles 26, 27, 28, 29 and 43 of the Constitution:

74. This Petition is unique.

75. The Petition has its basis on the contention that the Respondents failed to discharge their respective duties and as a result, the Petitioners’ kins lost their lives. On that background, the Petitioners now claim violation of their rights and fundamental freedoms arising from the deaths of their kins.

76. The Petitioners assert that as a result of the Respondents’ failure to prevent the bomb attack in 1998, the Petitioners’ rights and fundamental freedoms under Articles 26, 27, 28, 29 and 43 of the Constitution stand infringed.

77. For the Petitioners to, therefore, succeed in this Petition, they have to prove two key issues. The first one is the proof that the Respondents failed in their duties relating to the prevention of the bomb attack. The second issue comes up only after the successful proof of the first issue. The second issue is the proof of violation of the Petitioners’ rights and fundamental freedoms.

78. The matter before Court is a constitutional Petition. Like other disputes, the conduct of constitutional Petitions is generally governed by the Constitution and the law.

79. Article 159(2)(d) of the Constitution call upon Courts and Tribunals to administer justice without undue regard to procedural technicalities.

80. Speaking of the essence ofArticle 159(2)(d) of the Constitution, the Supreme Court of Kenya in Law Society of Kenya v. The Centre for Human Rights & Democracy & 12 Others, Petition No. 14 of 2013 held that: -

Article 159(2) (d) of the Constitution is not a panacea for all procedural shortfalls.

81. And, in Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission (IEBC) & 4 others [2015] eKLRthe Supreme Court further held that: -

Not all procedural deficiencies can be remedied by Article 159….

82. The practice and procedure in constitutional Petitions is further provided for under the Mutunga Rules.

83. Rule 20(1) of the Mutunga Rules is on the manner in which constitutional Petitions ought to be heard. Such Petitions may be heard by way of affidavits or written submissions or oral evidence. Rule 20(3) of the Mutunga Rules provide that a Court may upon application or on its own motion direct that the Petition or part thereof be heard by oral evidence. Rule 20(4) and (5) of the Mutunga Rules provide for the summoning and examination of witnesses.

84. The conduct of constitutional Petitions is also guided by various laws. For instance, the Evidence Act applies to matters generally relating to evidence. The Evidence Act is clear on its application to constitutional Petitions and affidavits in Section 2 thereof. The provision provides as follows: -

(1)This Act shall apply to all judicial proceedings in or before any Court other than a Kadhi’s Court, but not to proceedings before an arbitrator.

(2)Subject to the provisions of any other Act or of any rules of Court, this Act shall apply to affidavits presented to any Court.

85. Sections 107(1), (2) and 109 of the Evidence Act are on the burden of proof. They state as follows:

107(1) 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.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

and

109. Proof of particular fact

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.

86. The burden of proof on a Petitioner in a constitutional Petition was addressed by the Supreme Court in Communications Commission of Kenya & 5 Others vs. Royal Media Services Limited & 5 Others [2014] eKLRas follows: -

Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.

87. Turning back to the matter at hand, the Petition herein was heard by way of reliance on the pleadings, affidavit evidence and written submissions.

88. The Respondents deponed to, in details, the efforts the Government has so far put in place in fighting terrorism and further what the Government has been doing since the attack took place. All that has been captured in the parties’ cases above.

89. The Petitioners main hold against the Respondents was that the Respondents failed to act on some intelligence on the bomb attack. The Respondents, however, hold otherwise. They contended that the intelligence they received was of such general nature and did not point to the possibility of the attack in issue or at all.

90. And, that was all about the failure to protect the people who were at or around the site of the bomb attack on the part of the Respondents.

91. Does such evidence prove culpability on the part of the Respondents?

92. In answering the question, I will consider some decisions on the duty of the Government agents in the protection of rights and fundamental freedoms.

93. In Petition No. 17 of 2018,Joyce Chepkoech Too v Egerton University & another[2021] eKLR, the Petitioner’s quest for vindication of the violation of her right to life for failure by Egerton University to facilitate her Master’s Degree graduation in Educational Foundation despite completing course work, passing exams and submitting her thesis, was in contest.

94. In declining incidence of violation of the right to life, the Court, while adopting a wide scope appreciation of the right to life made reference to Douglas Moturi Nyairo vs. University of Nairobiand observed as hereunder: -

[46] I have similarly looked at Douglas Moturi Nyairo vs. University of Nairobi (supra), and would agree with it in so far as it was not confined to Article 26, but embraced a bird’s eye-view of the related constitutional safeguards, such as the right to dignity in Article 28 as well as the economic and socio economic rights provided for in Article 43 of the Constitution. It is instructive too that, the Court in that case was not convinced that the petitioner had demonstrated a violation of his right to life, even in its expanded sense. Accordingly, the Court held that:

The petitioner did not however demonstrate, through tangible evidence that he missed employment opportunities or that his standard of living and dignity was compromised/lowered following the respondent’s refusal to release his academic documents to him and on this score, I find the claim that his right to life was violated was not proved.”

[47] Hence, in my considered view, it would be unnecessary, in the particular circumstances of this case, to stretch the plain meaning of “life” for purposes of Article 26 to include the right of the petitioner to further her education for the purposes of bettering her standard of living. This is because the petitioner’s concerns, such as her right to higher education and to an improved quality of life, are well provided for in Article 43 of the Constitution.

95. In Petitions No. 132 of 2011 & 197 of 2012 (Consolidated)Florence Amunga Omukanda & another v Attorney General & 2 others(2016) eKLR the positive and negative obligations of the State to provide security and thus uphold and preserve constitutional rights of the citizens was extensively discussed.

96. In reference to Section 14 of the Police Act (now Section 24 of the National Police Service Act), the Learned Judges demarcated the point when liability of the Police arises for failure to protect its citizens. It observed as follows: -

47. It is our view that section 14 of the Police Service Act and now section 24 of the National Police Service Act impose a negative obligation on the part of the Government in general and the police in particular not to violate the rights and fundamental freedoms but also imposes a positive obligation on the part of the said agencies to protect the people from threat of violation of the said rights and fundamental freedoms. To this extent and as to whether the state is liable for violations of fundamental rights and freedoms by private and or third parties, we are guided by the decision in Association of Victims of Post Electoral Violence and Interights vs. Cameroonwhere it was held that:

The respect for the rights imposes on the State the negative obligation of doing nothing to violate the said rights. The protection targets the positive obligation of the state to guarantee that private individuals do not violate these rights. In this context, the commission ruled that the negligence of a state to guarantee the protection of the rights of the Charter having given rise to a violation of the said rights constitutes a violation of the rights of the charter which would be attributable to this state even where it is established that the state itself or its officials are not directly responsible for such violations but have been perpetrated by private individuals….According to the permanent jurisprudence of the commission, Article 1, imposes restrictions on the authority of the state institutions in relation to the recognized rights. This article places on the state parties the positive obligation of preventing and punishing the violation by private individuals of the rights prescribed by the charter. Thus any illegal act carried out by an individual against the rights guaranteed and not directly attributed to the state can constitute, as had been indicated earlier, a cause of international responsibility of the state, not because it has itself committed the act in question, but because it has failed to exercise the conscientiousness required to prevent it from happening and for not having been able to take the appropriate measures to pay compensation for the prejudice suffered by the victims.”(emphasis mine)

48. This principle of positive obligation has also been recognised by the European Court of Human Rights in Mahmut Kaya vs. Turkey[20]where it was held that:

the court recalls that the first sentence of article 231 enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction………….this involves a primary duty of the state to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual or individuals whose life is at risk from criminal act against individual.

49. Happily, for us, in relation to Kenyan law we will not be reinventing the wheel. The issue as to whether the police owed its citizens a duty to prevent the post-election violence was elaborately discussed by a three judge bench in the Charles Murigu Muriithi case where it was held that:

….. having determined that the state has a legal duty and a positive obligation to protect each of its citizen’s rights to security of their person and their property by securing peace through the maintenance of law and order, we have come to the inevitable conclusion that the state would in appropriate cases be held liable in cases where violations of the rights enriched in the Bill of Rights are proved even when those violations are occasioned by non-state actors provided that the duty of care is properly activated.

50. As to how the duty of care would be activated, the court in that case found that the police had an obligation to facilitate and create a peaceful environment which would ensure that every citizen enjoyed his fundamental rights and freedoms. The Court also examined the extent of that obligation and concluded that the police had a general duty of care to all its citizens. However, the police would be held liable to a citizen when that individual can demonstrate that the police owed him a special duty of care. As to how an individual can demonstrate that special duty of care that would make the police liable, the learned judges in the Charles Murigu Murithii case stated that;

the applicant must demonstrate that the acts complained of were directly perpetrated against him by the Police; that the police had placed the applicant in danger he would otherwise not have faced or that a special relationship existed between the applicant and the police on the basis of which Police protection had been assured.

51. We agree with that principle and we do not see any reason to depart from it. We must however add that the said special relationship or the assurance by the police need not be express. It may in fact be inferred from the circumstances of the case so that where for example a report is made to the police of an attack and the police without any justifiable reason refuse to act, it may be deemed that they have abdicated their duty to protect a victim whose report ought to have given rise to a special relationship.

52. For the report to be admitted so as the positive obligation may arise, it was held in Mahamut Kaya Case that:

…………for a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a Third Party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk…….”

53. The above principle was also recognised by the European Court of Human Rights in the case of Osman vs. The United Kingdom that:

…in the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the contest of their above-mentioned duty to prevent and suppress offences against the person…it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life of an identified individual or individuals from criminal acts of a third party which, judged reasonably, might be have been expected to avoid that risk…

54. This principle goes hand in hand with the principle of due diligence and in this respect in Zimbabwe Human Rights NGO Forum vs. Zimbabwe it was observed that:

The doctrine of due diligence is therefore a way to describe the threshold of action and effort which a state must demonstrate to fulfil its responsibility to protect individuals from abuse of their rights. A failure to exercise due diligence to prevent or remedy violation, or failure to apprehend the individuals committing human rights violations gives rise to state responsibility even if committed by aliens has subsequently been applied in regard to acts against nationals of the state. The doctrine of due diligence requires the governmental apparatus and in general, all the structures through which public power is exercised, so that they are capable of juristically ensuring the free and full enjoyment of human rights……

55. We are guided. The principle emerging above is that once the necessary ingredients are found to exist, the positive obligation of a state is discharged only if it can be proved that it produced tangible results.

97. The foregoing squarely answers the question in the negative. The Petitioners failed to adduce any evidence that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

98. Even as the Petitioners relied on the issue of intelligence reports, none was adduced in evidence neither were the sources disclosed nor the recipients of the said reports.

99. A candid look at the Petition reveals that it was based on heresay. But, even by taking into account the fact that the Respondents accepted the alleged intelligence reports, the Petitioners did not adduce any evidence to dispel the Respondents position that the reports were of general nature and could not be relied upon to prevent the attack. The Petitioners’ averments remain hollow.

100. This Court now finds and hold that the Petitioners failed to prove that the Respondents acted in a manner so as to endanger lives of the persons who died out of the bomb attack.

101. There being no liability on the part of the Respondents as discussed above, the issue as to whether the rights and fundamental freedoms of the Petitioners, as pleaded in the Petition subject of this judgment, were infringed as a result of the persons who died during the bomb attack does not arise.

102. This Court returns the verdict that the Petitioners failed to prove that their rights under Articles 26, 27, 28, 29 and 43 of the Constitution were variously infringed. The issue is hereby answered in the negative.

Disposition:

103. With the failure to prove the Petition, the discussion ought to come to an end. Any further discussion will not add any value to the Petitioners’ case.

104. Consequently, the Petition be and is hereby dismissed with costs.

Orders accordingly.

DELIVERED, DATEDandSIGNED atNAIROBIthis10thday ofMarch, 2022.

A. C. MRIMA

JUDGE

Judgment virtually delivered in the presence of:

Wesley Mdawida Charo,the Petitioner in person.

Miss. Bisem,Learned Counsel for the 1st Respondent.

Miss. Mricho, Learned Counsel for the 2nd Respondent.

Elizabeth Wanjohi– Court Assistant