[2022] KEHC 1867 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 410 OF 2017

IN THE MATTER CONCERNING ARTICLE 2(1), 2(4), 3(1), 10, 19, 20, 22, 24, 25, 28, 29, 39(1), 47(1), 47(2) OF THE CONSTITUTION OF KENYA

IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 25, 28 AND 29 OF THE CONSTITUTION OF KENYA

BETWEEN

SAMUEL OKUMU OKWANY...............................................PETITIONER

VERSUS

HON. ATTORNEY GENERAL...........................................RESPONDENT

JUDGMENT

THE PETITION

1. The Petitioner through a Petition dated 21st April 2017 seeks the following reliefs:-

a) A declaration that the Petitioner’s fundamental rights and freedoms were contravened and grossly violated by the Respondent’s Special Branch Police Officers who were Kenyan Government Servants, agents, employees and in its institutions at Nyayo House Torture Chambers for eight 32 days.

b) A declaration that the that the Petitioner’s fundamental rights and freedoms were contravened and grossly violated when the Petitioner was detained without trial for one year at the Shimo la Tewa Maximum Security Prison.

c) A declaration that the Petitioner is entitled to the payment of damages and compensation for the violations and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the constitution.

d) An award of Kshs. 10,000,000/-(ten million) as compensation for the violations aforesaid.

e) General damages.

f) Interests on prayers d and e at Court’s rates until payment in full.

g) Costs of this suit.

The Petitioner’s Case

2. The Petitioner’s case as presented in the Petition and supporting affidavit sworn on 21st April 2017, is that, between August 1982 and August 1988 he was subjected to both physical and psychological torture by the respondent’s Special Branch Police Officers for 32 days at the Nyayo House Torture Chambers ; arrested and detained without trial for one year at the Shimo la Tewa Maximum Security Prison; and his rights to human dignity violated contrary to Articles 29 (d), 29(b), 28 and 39 of the Constitution.

Respondent’s case

3. The Respondent filed a replying affidavit sworn by Major Damaris Apondi Agnetta sworn on 30th April 2019. The Respondent denies that the petitioner was ever a military officer employed by the Kenya Defence Forces in 1976 and all the particulars of alleged violation of fundamental rights and freedoms of the Petitioner. The Respondent further contends that all suspected persons who were serving in the military at the time of the failed coup were subjected to a court martial or summary disciplinary trial before any dismissal or convicted and sentenced to serve jail terms. A process which the Petitioner has not mentioned. It is Respondents’ contention that arrest was made on the reasonable belief by the Government of the day that the Petitioner was involved in the failed coup of 1st August, 1982.

4. The Respondent further aver that the suit has been brought after an inordinate delay having filed the suit more than 30 years after the alleged violation of rights without justification. Hence respondent’s trial proceedings and records have been destroyed and critical witnesses have either died or left service.

ANALYSIS AND DETERMINATION

5. Having carefully considered the Petition, the Respondent’s response, and parties’ submissions, I find that the following issues arise for determination:-

a) Whether the Petition is time barred.

b) Whether the Petitioner’s rights were violated.

c) Whether the Petitioner is entitled to the reliefs sought.

A. WHETHER THE PETITION IS TIME BARRED.

6. The Petitioner submitted that the delay in filing the instant Petition was occasioned by the fact that for his safety he could not sue the government of the day. He further submitted that violation of fundamental human rights and freedoms are not subject to the statute of limitation. He relied on Chege Kuria Mwere & 6 others v Attorney General [2017] eKLR.

7. The Respondent contended that the petitioner was guilty of latches as he has instituted this suit after over 35 years without justification. Such an action, it argued contravened Article 50 of the Constitution as it cannot make a substantive defence by reason of death of witnesses with plausible evidence; loss of memory due to effluxion of time for the available witnesses; and destruction /or loss of key documents and records. It relied on HCPT No. 180 of 2011 James Kanyita Nderitu v Attorney General; Durity vs AG (2002) UKPC 20; Joyce Nakacwa vs Attorney General and others, Constitutional Claim No. 2 of 2001 (2020) UGCCI; Civil Appeal No. 268 of 2016; LT. Col. Peter Ngari Karume & Others vs Attorney General, Nairobi Constitutional Application No. 128 of 2006 (2009) eKLR; and Center For Rights Education And Awareness & Another vs John Harun Mwau & 6 others (2012) eKLR.

8. The general rule is that there is no limitation with respect to Constitutional Petitions alleging violation of fundamental rights as observed in Dominic Arony Amolo vs Attorney General , Nairobi High Court Misc. Civil Case No. 1184 of 2003 (OS) [2010] eKLR. However the Court is required to determine whether there was inordinate delay as observed in James Kanyata vs Attorney General and Another, Nairobi petition No. 180 of 2011and to also consider whether the delay is unreasonable and prejudicial to the Respondent’s defence as held in Joseph Mugere Onoo vs Attorney General, Petition No. 424 of 2013.

9. The Petitioner’s case herein is one of the historical injustice and Lenaola J. in Njuguna Githuru v Attorney General [2016] eKLR stated while admitting the petitioner’s suit that there was reluctance of Kenyan courts to admit torture claims prior to 2012. Further while agreeing with the obiter dictumin Gerald Gichohi and 9 others vs Attorney General Petition No. 487 of 2012 he stated that the dictates of transitional justice cannot be ignored.

10. In as much as I note that there has been delay in filing the petition herein, I also note in line with the cited authorities and agree with Justice Lenaola that these are special cases, where there have been historical injustices and which have been acknowledged by the government. The Petition should be admitted to hear and determination.

B. WHETHER THE PETITIONER’S RIGHTS WERE VIOLATED.

11. Before delving into the issue of violation of the petitioner’s rights, I do note that the respondent has denied that the petitioner was ever an employee of the Kenya Defence Forces and the existence of the service Number 22232. It argues that the petitioner only made a mere mention that he was an officer but failed to disclose the rank for which he was serving at the time of the arrest and further if he indeed was an officer he could not have been discharged but terminated of his commission. It is in any event argued that if that were the case then this is not the correct forum for the Petitioner’s grievances. The Respondent relied on Josephat Ndirangu vs Henkel Chemicals (EA) LTD (2013 eKLR; Republic vs Karisa Chengo & 2 others; Moses Mwicigi and 14 others vs Independent Electoral and Boundaries Commission and 5 others (2016) eKLR; the matter of the Interim Independent Electoral Commission S.C., Constitutional Application No. 2 of 2011 [2011] eKLR; Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others S.C. Application No. 2 of 2012 [2012] eKLR.

12. The Petitioner has attached to his Petition a Certificate of Service in the Kenya Armed Forces with Serial No. 8458 and Service No. 22232 indicating that he was enlisted on 12th February 1976. The respondent has merely denied the Petitioner was a Military Officer and averred that there was never an officer by the Petitioner’s name bearing that service number. It has however not adduced evidence to this court as required of it by Section 107 of the Evidence Act to show that the Petitioner was not the owner of the said service number. I find that the Respondent could have either shown this Court that the said certificate is a forgery, or it did not exist or in support of its arguments produce a list to show who owned that number. I find that by dint of Section 83 of the Evidence Act the certificate the document relied upon by the Petitioner is a genuine document and proves that the Petitioner was a member of the Kenya Defence Forces.

13. On violation of the Petitioner’s rights, it is argued that the Petitioner’s arrest, torture and detention were unlawful. In the instant Petition it is not disputed that the Petitioner was arrested while receiving treatment from the Armed Forced Memorial Hospital, detained without trial, tortured for long periods. The Petitioner places reliance in the case of Njuguna Githiru v Attorney General [2016] eKLR. The Petitioner further contends that his arrest, torture and detention was a violation of his fundamental rights and freedoms guaranteed in the new and old Constitution. He relied on Chege Kuria Mwere case (supra).

14. The Respondent on his part argues that the Petitioner has not adduced evidence to the effect that his fundamental rights were violated. It further argues that the Petitioner has not proved illegal detention as envisaged in the cases of Lt Col Peter Ngari Kagume & Others v Attorney General (supra); Anarita Karimi Njeru v Republic ( No. 1) [1979] KLR 154; and Kenneth Njindo Stanley Matiba v The Attorney General Misc. Application No. 666 of 1990.

15. On inhumane treatment the Respondent relies on Koigi Wamwere v Attorney General Petition 737 of 2009 [2012] eKLR for the argument that the same is neither here nor there. It is argued by the Respondent that the Petitioner has not proved his case to warrant the granting of the orders sought. It relies on Fredrick Gitau Kimani v The Honourable Attorney General & 2 others, Petition 157 of 2011 [2012] eKLR.

16. Upon perusal of the Petitioners’ pleadings, the Petitioner claims that he was arrested on 1st August 1982 transferred to Kamiti Security Prison, then transferred to Naivasha Maximum Prison in early 1983 where he stayed for 8 months and again transferred to Shimo la Tewa where he was kept in the underground cell for 4 years and released on 30th April 1987. He was again arrested in August, 1988 taken to the Nyayo Chambers for 32 days and then taken to Shimo la Tewa Maximum prison and released after one year. He argued that all this happened without any trial. This is clear that was contrary to the provisions of Article 49 (f) of the Constitution that provides for the right of an accused person “to be brought before a Court as soon as reasonably possible, but not later than- twenty-four hours after being arrested; or if twenty-four hours ends outside ordinary Court hours, or on a day that is not an ordinary Court day, the end of the next Court day.”I therefore agree that the same was unlawful as was held in Albanus Mwasia Mutua v Republic [2006] eKLR.

17. The Petitioner has pleaded further that he was tortured when he was arrested while at the Armed forces Memorial Hospital in Nairobi; that he was brutalized by kicking and jerking his left hand; that while at Kamiti Maximum Prison, he was held in a solitary cell without ventilation, beddings, toilet facilities et al while naked; he was starved of food and water for 3 days before he was taken for interrogations; he was subjected to physical and mental torture for 3 days by 5 interrogators and after that he was confined in a knee deep water logged cell which was is toilet and his sleeping room for 14 days.

18. It is Petitioner’s case that after 14 days he was again moved to the solitary cell which had no beddings nor toilet and that at the conclusion of the said period, he had contracted pneumonia, peptic ulcers and his skin peeled off. His feet soles were rotten and his buttocks were bruised. He remained there for 14 days and in early 1983 he was transferred to Kamiti Maximum Prison where he was kept in a cage with his legs and hands handcuffed where he stayed for 8 months. He was again arrested in 1988 and taken to Criminal Investigations Department (C.I.D) where the interrogations included being beaten with rubber whips and clubs. After that he was taken to Nyayo Torture Chambers where he was physically assaulted, tortured and thrown into a water logged cell for 34 days before being detained at Shimo la Tewa.

19. The Respondent has denied the allegations and has only stated that the Petitioner has not produced any evidence to prove the said allegations. In its replying affidavit it has argued that if at all the said violation occurred it was because of the petitioner’s participation in the failed coup of 1st August 1982. Article 29 (d) of the Constitution prohibits torture and a look at the ordeal as narrated by the petitioner falls under the definition of torture as defined under Article 1 of the Convention Against Torture and the judgment by Visram J. in Samwel Rukenya Mburu vs Castle Breweries, Nairobi HCCC 1119 of 2003.

20. Looking at the argument by the Respondent I find that to be baseless as it was not expected that the state would give the Petitioner any document or certificate to show that he had been detained without trial for 32 days as observed inJohnson Gacheru Ngigi v Inspector General of the National Police Service & another [2019] eKLR. I further find and hold that participating in the alleged coup did not in any way take away the Petitioner’s rights as espoused in Article 25 (a) of the Constitution. I no doubt find that the Petitioner has proved that there was torture and unlawful detention, leading to violation of the Petitioner’s rights.

C.WHETHER THE PETITIONER IS ENTITLED TO THE RELIEFS SOUGHT.

21. The Petitioner herein aver that having demonstrated the grave injustices and violations of his fundamental rights, the Court should grant him the reliefs sought in the Petition. Reliance is placed in the case of Akusala A. Boniface v OCS Langata Police Station & 4 others [2018] eKLR, and Petitioner seeks an award of Kshs. 10,000,000/- as compensation for the violations of his fundamental rights and freedoms.

22. The Respondent on its part urge that the reliefs sought should not been granted due to inordinate delay and lack of evidence. It relies on Packer vs McKenna [1874] 10 LR 96; Booth Irrigation Ltd (No. 2) HC Misc Application No. 1052 of 2004; Charles Gachathi Mboko v Attorney General HCCC 833 of 2009 [2014] eKLR; and Aggrey Stauss Induswe v Attorney General Constitutional Petition 95 of 2018 [2021] eKLR.

23. Having determined that the petitioner’s rights were violated, I find that the Court should award prayers (a), (b) and (c) in the Petition. On prayer (d), for one to be able to determine the amount of compensation, one has to take into consideration the torture inflicted on the petitioner, the length of time the Petitioner was held in unlawful custody, the decided cases in the subject matter and what is reasonable in the circumstanced of the each case as held in Jeniffer Muthoni Njoroge and 10 others v Attorney General [2012] eKLR. In that Petition, the Petitioner was awarded Kshs. 3,000,000/-for violation of his constitutional rights against torture unlawful pre-arraignment and detention for 30 days.

24. In Johnson Gacheru Ngigi v Inspector General of the National Police Service & another (supra) the Court awarded Kshs. 4,000,000/- wherein the petitioner was unlawfully detained and tortured for 32 days. I therefore in view of the facts of this case find that an award of Kshs. 7,000,000/- would be adequate compensation for the Petitioner.

25. The upshot is that the Petitioner’s Petition is meritorious. I proceed to make the following orders:-

a) A declaration be and is hereby issued that the Petitioner’s fundamental rights and freedoms were contravened and grossly violated by the Respondent’s Special Branch Police Officers who were Kenyan Government Servants, agents, employees and in its institutions at Nyayo House Torture Chambers for 32 days.

b) A declaration be and is hereby issued that the Petitioner’s fundamental rights and freedoms were contravened and grossly violated when the Petitioner was detained without trial for one year at the Shimo la Tewa Maximum Security Prison.

c) A declaration be and is hereby issued that the Petitioner is entitled to the payment of damages and compensation for the violations and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the constitution.

d) The Petitioner be and is hereby awarded Kshs.7,000,000/= as compensation for the violations aforesaid.

e) Interest on prayer (d) at Court rate from the date of judgment till payment in full.

f) Costs of the suit to the Petitioner.

Dated, SignedandDelivered at Nairobion this 3rdday ofMarch, 2022.

………………………

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA