Introduction
1. The Petition dated 29th April 2021 is supported by the 1st Petitioner’s Affidavit by Dr. Annette Mbogoh and the 2nd Petitioner’s affidavit in support and further affidavits dated 29th April 2021, 5th May 2022, 10th September 2022 and 8th September 2024.
2. The Petition is founded on the Petitioners’ assertion that the 1998 U.S. Embassy bomb attack by Al Quada terrorists was caused by Government of Kenya’s manifest neglect in to heeding repeated early warnings, thereby failed to detect, prevent and stop the terrorist attack. The Petitioners thus contend that the Kenyan Government failed to discharge its domestic and international obligation of protecting Kenyan citizens and thus violated their constitutional rights considering that 201 Kenyans lost their lives, while many others were maimed, and others suffered serious psychological trauma a result of the said terrorist act. The Petitioners aver that despite the loss and damage; the Government did not give the victims and their families adequate compensation. This situation, they aver, has worsened the after-effects of the tragedy.
3. Accordingly, the Petitioners seek the following reliefs against the Respondents:
a) A declaration that the Kenya Government failed to take the necessary steps to detect, prevent and stop the 1998 U.S. Embassy Bombing terrorist attack as the entire planning and execution of the attack or likelihood of an attack was known by the State and if not, the attack should have reasonably come to the knowledge of the State.
b) A declaration that with the general information and sufficient intelligence on a possible attack the 2nd Respondent and officers working under him were in complete dereliction of their duties and obligations under Section 14 (1) of the repealed Police Act, Cap. 84.
c) A declaration that the Respondents compromised or violated the rights to life, security of Person and the legitimate expectation of the of the Petitioners and the estates in whose behalf they bring this suit under Section 70 (a), 71 (1), 74 (1) of the repealed Constitution, Article 26 and 29 of the Constitution of Kenya, Article 4 and 6 of the African Charter on Human and People's Rights and Article 3 of the Universal Declaration of Human Rights.
d) A declaratory order directed at the Attorney General to advise the President to set up a commission of inquiry to inquire on: the security failures leading to the 1998 U.S embassy terrorist attack, culpability of state institutions and state officers in the attack and recommendations for their prosecutions.
e) A declaration that the state bears an obligation to provide adequate, effective and prompt compensation/ reparations to all victims of the 1998 U.S Bomb last victims for various forms of harm suffered.
f) An order directed at the Attorney General to within 6 months of the Court judgment present a report to the Court on the steps taken by the government to:
i. File an international jurisdiction case for compensation of all victims and their families against the Republics of Sudan and Iran and or steps taken to obtain reparations from the countries.
ii. Obtain compensation for victims from Al-Qaeda assets and BNP Paribas S.A. (BNPP), a global financial institution headquartered in Paris
iii. Seek an acknowledgment of responsibility from the Republics of Sudan and Iran.
g) A declaration that as a result of the breach of rights enumerated above, the Petitioners have suffered damages, pain and suffering.
h) A declaration that each of the Petitioners are therefore entitled to special, general and exemplary damages against the Respondents herein jointly and/or severally.
i) An order for compensation as enshrined and provided for under Article 23(e) of the Constitution made up of special damages for the expenses incurred and the damages for loss of lives, general damages and exemplary damages pursuant to the declaration prayed above for each of the petitioners.
j) Costs of the Petition be provided for.
Petitioners’ Case
4. The Petitioners rely on various reports on U.S. Embassy bombing in Kenya and Tanzania as well as proceedings of Court cases that took place in the United States in urging that the Kenya Government has adequate early warnings to thwart the attack. These Reports and cases are detailed in the affidavit of Dr. Annette Mbogoh, the 1st Petitioner’s Executive Director. The cases are: US Supreme Court case of Caroline Setla Opati (suing as the Executrix of the Estate of Caroline Setla Opati v Republic of Sudan; Ministry of External Affairs and Ministry of Interior of the Republic of Sudan; United States District of Columbia, Civil Action No. 99 125 (JMF) Odilla Mutaka Mwani, et al, v Al Qaeda, victims of 1998 US bomb blast tragedy; Mary onsonga v Republic of Sudan; Unites States of America v Ahmed Khalfan Ghailan, Defendant, 761 F Supp. 2d 167 (United States District Court, S.D New York). The Reports relied upon include 9/11 Commission Report; Unheeded Warnings: A Special Report, before bombings, Omens and fears; Report of the accountability Review Boards, Bombings of the US Embassies in Nairobi, Kenya and Dares-salam, Tanzania; Anatomy of a Terrorist Attack: An indepth investigation into 1998 Bombings of US Embassies in Kenya and Tanzania.
5. Relying on these reports, the 1st Petitioner’s director swore that from what can be discerned in the reports, the initial plans to attack the U.S. embassy in Nairobi by Al Qaeda began in 1993. That it is documented that Al Qaeda operative in charge of the matter lived in an apartment in Nairobi where the leaders held their meetings and further set up a makeshift laboratory for developing their surveillance photographs.
6. She stated it is further documented that in August 1997, the Federal Bureau of Investigations (FBI) raided the house of Wadih El Hage in Nairobi, one of the terrorist managers. It is alleged that the FBI found a letter in his computer’s hard drive informing that there was a Bin Laden cell in Nairobi and his call was to kill Americans. That around May 1998, the terrorists were residing in Runda estate.
7. Soon thereafter on 7th August 1998, the bombing occurred at the American Embassy in Nairobi, killing over 213 people. Among the persons were 44 American Embassy employees out of which 12 were Americans. In addition, 10 Americans and 11 Foreign Service National Employees were seriously injured. Among these was U.S. Ambassador, Prudence Bushnell and the Kenyan Minister of Commerce.
8. Further to this, over 200 Kenyans were killed and 4000 were injured from the bomb blast. The U.S. Embassy building was as well devastatingly damaged. It is noted that much of death and injury was caused by the secondary fragmentation caused by the bomb blast.
9. The Petitioners depone that following the bombing attack, they lost their loved ones while others were seriously injured. They aver that their lives were never the same again. Moreover, the life that followed was one of pain, sadness, anger, stress and trauma. It is noted that some of the injured persons later on succumbed to their injuries while others still suffer illness related to the bomb last including cancer. Most continue to be on medication support which in most instances is beyond their reach.
10. Some of the sufferings and ailments are outlined as: deep cut wounds, spinal injuries, eye injuries that led to partial and total loss of vision, nasal blockage, sneezing and loss of smell, hearing loss, mental health problems, stroke, peptic ulcers and loss of limbs and mobility. Accordingly, it is argued that the 1998 U.S. Embassy bombing left a grave impact on the Petitioners.
11. The Petitioners claim that the families of the United States government employees who were killed and injured, filed cases seeking compensatory and punitive damages from Sudan and Iran owing to their critical support of Al Qaeda. In the cases, these parties were awarded 4.3 billion dollars. It is noted that the Petitioners herein were not included in these suits as were neither American citizens, employees or contractors as guided by the American Foreign Sovereign Immunity Act (FSIA).
12. The Petitioners are aggrieved that while America sought compensation for its people, the Kenyan government has failed and is unwilling to pursue compensation for the Kenyan victims of the bombast attack. They assert that the State has a national and international obligation to ensure the realization of an effective right to reparation including compensation for all victims of the 1998 bombing attack.
13. That in the Report (AM 3)- ‘the 9/11 Commission Report’ it is documented there was substantial planning of the attack which had commenced as early as December, 1993. That it is recorded that by then, Al Qaeda operatives had began casing targets in Nairobi and had set up a makeshift laboratory in an apartment in Nairobi for developing surveillance photographs and the Al Qaeda leaders based in Kenya or traveling to Kenya would meet there.
14. That in the Report (AM 4) , Anatomy of a Terrorist Attack: An in-depth Investigation into 1998 Bombings of U.S Embassies in Kenya and Tanzania, it is recorded that in 1997, under the Kenyan Police accompanied by CIA and FBI disguised as searching for stolen goods raided the House of EL Hage in Nairobi, two days after he returned from Afghanistan, in which they found a computer and downloaded files and also seized correspondences. That the Report details contents of a disturbing letter believed to have been authored by Fazul Abdullah aka Harun Fazul, who was later found to have been one of the masterminds of Nairobi bombing. The letter had contained details of the East African terrorist cell.
15. That in the said report, it was also recorded that that 9 months before the attack, an Egyptian named Mustafa Mahmoud Said Ahmed who was tried and deported by Tanzania, had walked into the Embassy and told the Central Intelligence Agency (CIA) officers that there was a plan to detonate a bomb in the underground diplomatic parking lot. The informant was subsequently turned over to the Kenyan authorities but they negligently failed to act on the information that was availed to them.
16. In the Report (AM 5) ‘Unheeded Warnings: A Special Report, before bombings, Omens and fears’, it is reported that the former U.S. Ambassador, Prudence Bushnell had warned incessantly of an imminent terrorist attack. That this Report further details the fact that the Central Intelligence Agency (CIA) had repeatedly informed State Department Officials in Washington and Kenya Embassy there was an active terrorist cell in Kenya connected to Osama Bin Laden who was masterminding the attack. That likewise, the report reckons that Kenyan Police accompanied by CIA and FBI raided the House of Wadih El Hage in August 1997 and found a computer from which they downloaded files and discovered a letter indicating the existence of a an ‘East African cell’ of Osama Bin Laden group.
17. That in the Report (AM 6)- Report of the Accountability of the Review Boards, Bombings of U.S. Embassies in Nairobi, Kenya and Dares-Salaam, Tanzania- it documents the security concerns the American Ambassador had over the vulnerability of the Embassy to the attack one of which was the failure by the Embassy to have a radio frequency dedicated to security communications because this request had repeatedly been rejected by the Kenyan Government.
18. That in the Criminal Case (AM 7)- United States v Ahmed Khalfah Ghailan, Defendant, 761 F. SUPP 2d 167 United States District Court, S.D. New York, the provided crucial facts on the presence of a terrorist cell and the well deliberated planning of US Embassy terrorist attack starting 1990s.
19. Consequently, the Petitioners argue that the government was negligent and ignored intelligence or information at its disposal to protect the people of Kenya.
20. Equally, the Petitioners argue that the government failed to increase security at the Kenyan borders and vet all persons coming into the Country thus making it easier and country vulnerable to the attack. The government is also accused of allowing or being complacent in failing to stop the smuggling of money into the Al Qaeda cells in the country.
21. In a further affidavit, the 2nd Petitioner quoting the book by the Prudence Bushnell, Terrorism, my story of the 1998 Betrayal and U.S Embassy bombings Resilience, 2018, states that it is evident that the law enforcement and intelligence knew about Al Qaeda since 1996.
22. Additionally, the 6th Petitioner a survivor of the 1998 bombing attack acknowledges his awareness of the publication, Beyond the scars: A Medical History of the 1998 Nairobi Bombing of the American Embassy in a further affidavit. He avers that it is a comprehensive report on the management of bomb blast injuries and effects that resulted following the attack. He as such, adduced this Report so that this Court can appreciate the devastating medical effects of the bomb blast and be guided in determination of the issue of damages.
23. That unlike in United States where Courts have ordered compensation of victims who are US citizens and contractors to be paid by Republic of Sudan and Islamic Republic of Iran for their complicity in Al Qaeda attacks, The Petitioners contend the Respondents herein have not only failed to compensate their victims but have also neglected to demand for compensation or reparations from Iran, Sudan and BNP Paribas S.A. (BNPP), the States or institutions that provided material support to the terrorists and have thus violated their national and international obligation to provide adequate, effective and prompt compensation to all victims.
24. Furthermore, despite the Respondents-through the Principal Secretary Ministry of Interior, expressly pledging in writing to pay compensation on 19th June, 2015; they have failed and refused implement this assurance.
25. The Petitioners in addition point out that constitutional petitions are not time barred and that one can neither acquiesce or waive a fundamental right and freedom as protected in the Constitution. The Petitioners contend that the government’s continued failure to pay reparation is a continuing violation. For this reason, it is argued that the doctrine of inordinate delay is not applicable in this matter.
26. The Petitioners aver that the medical and life situations of many families and victims have incapacitated them financially hence the extensive period taken in filing this suit.
Respondents’ Case
27. The Respondents responded to the Petition through the Replying affidavit of the 1st Respondent’s Principal Secretary, Dr. (Eng.) Karanja Kibicho, CBS, sworn on 12th April 2022. (the only affidavit on behalf of the Respondents).
28. On the onset, he contends that the Petition lacks both a factual and legal basis especially the assertion by the Petitioners that the government knew about the attack yet failed to take the necessary steps to prevent the attack. He avers these allegations are inaccurate and without any basis.
29. First, he depones that the government did not know about the bombing attack or its likelihood as alleged. He avers that in the period leading up to the attack, there was no specific or actionable intelligence or warning of the attack. He states that the only information the government had was the heightened terrorist activities in the region.
30. He depones that this fact is discernable from annextures marked AM 3, AM 4, AM 5 and AM 6. This aspect was also highlighted in the case of Monica Ombati v Republic of Sudan (AM 2), James Owen v Republic of Sudan (AM 2) and US V Ahmed Khalfan Ghailani (AM 7). In view of this, he argues that the Petitioners reliance of the said reports and court cases to prove existence of this intelligence has no basis.
31. He states that prior to the bombing attack, when Kenyan authorities were alerted about persons suspected to be terrorists, swift action was taken as is evident in the Wadil el Hage case. Actually, he informs that this capture was a result of the concerted effort of the Kenyan police with the CIA and FBI (AM 4). Equally, in 1997 when the Nairobi Branch of Islamic Charity, Al Haraain Foundation was suspected of plotting terrorist attacks against Americans, the police moved swiftly and arrested 9 of their members (AM 5). Correspondingly, when the Egyptian, Mustafa Mahmoud Said Ahmed walked in the U.S. Embassy and reported a suspected terrorist attack, the police interrogated him and later deported him.
32. Further to this, he contends that the Petitioners did not adduce any evidence to demonstrate that the Kenyan borders were not well guarded and persons entering not properly vetted. In the same breath, he argues that the allegation of smuggled money under the government’s nose, was also not proved just like the other claims against the government.
33. In fact, he states that the government was absolved from liability for the attack in Otolo Margaret Kanini and others v Attorney General and others (2022) eKLR. Considering this, he contends that the pronouncement in this case, renders the instant Petition baseless.
34. He depones that as soon as the bombing attack happened, the government coordinated the initial rescue efforts and later efforts by local and international NGOs. The government as well coordinated the emergency assistance from Israel Defense Forces, the United Kingdom, France, Denmark, Japan and United Nations.
35. The then President, H.E. Daniel Arap Moi further set up the National Disaster Emergency Fund known as Njonjo Fund. This fund received and disbursed funds to victims or their families so as to cater for funeral expenses and also compensation. As such, he stresses that the government expended every effort to ameliorate the conditions of the victims and their families. Additionally, suspects associated with the attack were also apprehended, charged, convicted, sentenced and imprisoned in the U.S. (AM 7 and hereto KK 3 and KK 4).
36. Furthermore, he points out that Sudan and Iran being sovereign states, the government cannot pursue them in the manner sought by the Petitioners owing to the doctrine of sovereign immunity. He as well notes that while other Kenyans have successfully sued Sudan and Al Qaeda in US courts, Kenya lacks locus standi under the US Foreign Sovereign Immunity Act to do so.
37. Nonetheless, he argues that there are no provisions in the Government Proceedings Act or other Act that would allow the government to institute such claims on behalf of the victims. He on the flipside argues that the victims are not without remedy as the victims can sue the terrorist in Kenyan Courts.
Petitioners’ Submissions
38. On 8th September 2024, the Petitioners through Khaminwa and Khaminwa Advocates filed submissions and listed the issues for determination as: whether the Petition was filed within a reasonable time frame, whether the Petition meets the requirements of a constitutional petition, whether the Respondents have a responsibility to prevent and combat terrorism, whether the Kenyan government had prior intelligence over the U.S. Embassy bombing terrorist attack, whether the reports, publications and judgements relied upon by the Petitioners are admissible, whether state has an obligation to pay compensation/ reparation to all victims of the 1998 U.S Bomb Blast victims, whether the state violated the rights of the Petitioners and their children, and whether a Commission of Inquiry should be formed.
39. On the first issue, Counsel submitted that the Petitioners have been on a long quest to access justice and reparations as outlined in the Petitioners’ affidavits. Counsel noted that the 23-year delay is not inordinate. This is because, the bomb blast had severe effects on the health of the victims which included death and so most victims suffered lifelong incapacity and others disabled. Counsel submitted that owing to the gravity of these effects the Petitioners first attended to their health concerns before seeking justice. Counsel added that this caused a financial strain which impacted on the Petitioners ability to file a suit promptly, being that their financial resource was being utilized for their treatment. Counsel noted that this was the reason, the Petitioners approached the 1st Petitioner for legal assistance.
40. Counsel further added that the government had promised the Petitioners that it would compensate the victims and their families however this legitimate expectation was violated. This in addition increased in the delay in filing this suit.
41. That said, Counsel stressed that constitutional petitions do not have timelines. Reliance was placed in Eliud Wefwafwa Luucho and 3 others v Attorney General [2017] eKLR where it was held that:
“ The question of limitation of time in regard to allegations of breach of fundamental rights has in many cases been raised by the State and our courts have consistently held that there is no limitation with respect to constitutional petitions alleging violation of fundamental rights with a section of our judiciary holding that a court must always consider whether the delay in filing a petition alleging violation of constitutional rights is unreasonable and prejudicial to a respondent’s defense and further the state cannot shut its eyes on its past failings nor can the court ignore the dictates of transitional justice discussed below.”
42. Like dependence was placed in Nairobi Pct. 104 of 2018 Legal advice Centre T /A Kituo Cha Sheria V A.G and Others and Wamwere & 5 others v Attorney General Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR).
43. Turning to the second issue, Counsel submitted that the Petition calls the Court to interpret and apply the provisions of the former Constitution and current Constitution. Counsel submitted that the Petitioners rights under Section 70 (a), 71(1) and 74 (1) of the repealed Constitution and Articles 26(1) and Article 29 of the Constitution had been violated by the Respondents. In light of this and relying in the opine in Mumo Matemu v Tmsted Society of Human Rights Alliance & 5 others [2013] eKLR upholding the threshold in the Anarita Karimi case, Counsel submitted that the Petition meets this threshold.
44. On the third issue, Counsel submitted that the obligation placed on the State to protect the lives and property of its people stems from a holistic interpretation of Article 1 of the Constitution. As such, Counsel argued that there is a negative obligation on the part of the government in general and the police not to violate the rights and fundamental freedoms, but the law imposes a positive obligation on the part of the government to protect its people as guided in Association of Victims of Post Electoral Violence and Interights vs Cameroon (272/2003).
45. Like dependence was placed in Mahmut Kaya vs. Turkey Application No. 22535/93 and Charles Murigu Murithii & 2 others v Attorney General [2015] eKLR.
46. Counsel on the fourth issue submitted that to succeed in this issue, it must be demonstrated that the State had prior information of an action to be held liable as held in Charles Murigu Muriithi (supra). Counsel emphasized that as clearly evidenced in the Petitioners affidavits, publications and reports relied upon and decided cases, the State had prior knowledge of the imminent attack set for 7th August 1998 and so the Petitioners were entitled to protection against this attack.
47. Considering this, Counsel submitted that the police failed to diligently execute their function of preventing and detecting crime, apprehending the offenders and protecting human life. Counsel added that the Petitioners had an expectation that the action of the police would be efficient in preventing and detecting the terrorist attack however this expectation was violated.
48. To buttress this point reliance was placed in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it was noted that:
“For an expectation to be legitimate, it must be founded upon a promise or practice by tl1e public authority, that is said to be bound to fulfil the expectation.”
49. In addition, Counsel submitted that the government ought to be held liable for its action and non-action in this matter. Counsel stressed that the government should not invoke the defence of global terrorism as a scapegoat to abdicate its responsibility to prevent the 1998 bomb blast attack. Reliance was placed in Cameroonian case of 272/03: Association of Victims of Post Electoral Violence· & Interights/ Cameroon where the African Commission held as follows:
“Consequently, in having failed to prevent the 1992 post electoral violence even though there were early warning signs (evidently) of the events in question and not having obtained the intended results mentioned above, the State of Cameroon has failed in its obligation of Result imposed on it by Article 1 of the African Charter, and that in consequence the Respondent State is hardly in a position to invoke the circumstances of force majeure.”
50. Comparable reliance was placed in Mahmut Kaya (supra) and Osman v the United Kingdom (87/1997/871/1083).
51. Turning to the next issue, Counsel highlighted that the Respondents had not challenged the contents of the Reports and Judgments. In this matter, Counsel, relied in Section 60(2) of the Evidence Act which provides that on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. Counsel submitted that the reports, publications and judgments relied on by the Petitioners are relevant books and documents made from reliable credible U.S institutions and a distinguished U.S diplomat. Equally, Counsel submitted that Section 82(f) of the Evidence Act allows parties to rely on judgments of a commonwealth countries or foreign countries as public documents.
52. On the sixth issue, Counsel submitted that the victims and families of the 1998 bomb blast attack are yet to be compensated in comparison to the American citizens, Kenyan employees and contractors working in the U.S. embassy. As deponed by the Petitioners, Counsel submitted that the government had not taken any action to ensure that the Republic of Sudan and Iran are accountable and in addition compensate the affected victims and their families.
53. Counsel stressed that reparation is an international law obligation provided under the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law which were adopted and proclaimed by the United Nations General Assembly Resolution 60/147 on 16th December 2005 and the general principle 'Responsibility of States for Internationally Wrongful Acts’ .Equally, Counsel submitted that this is a domestic legal obligation on the government. Counsel submitted that the Petitioners having proved their allegations against the government, they were entitled to reparation.
54. Reliance was placed in Judgment No. 8 in the Case Concerning the Factory at Chorz6w (Claim for Indemnity) Jurisdiction) (the Chorzow Factory) where it was held that:
“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.”
55. Comparable dependence was placed in Belgium v, Spain - Barcelona Traction, Light and Power Company, Limited (New Application: 1962) -Judgment of 5 February 1970 - Second Phase, the Matter of African Commission on Human and Peoples' Rights v. Republic of Kenya Application No. 006/2012 and 245/02: Zimbabwe Human Rights NGO Forum v Zimhabwe.
56. Counsel on the seventh issue, submitted that the government by their actions and inaction had indeed violated the Petitioners rights to life and security of person as enshrined under Section 70 (a), 71(1) and 74 (1) of the repealed Constitution and Articles 26(1) and Article 29 of the Constitution, as such the Petitioners are entitled to compensation.
57. Counsel submitted that the Petitioners in their affidavits had outlined the various health and economic issues that they had endured as a result of the bombast. Counsel emphasized as already submitted that the Petitioners are entitled to be paid compensation by the government. Reliance was placed in Association of Victims of Post Electoral Violence and interights/Cameroon (Supra) where it was held that:
“It therefore follows that the government should pay compensation for the prejudices suffered. Despite the fact that the government is denying it, it understood that it could not remain insensitive to its obligation to pay fair compensation to the victims, for this reason it set up a Committee to assess the damages suffered by the complainants.”
58. On the appropriate amount for compensation, Counsel submitted that Courts have awarded substantial compensation for victims involved in similar violations. Counsel highlighted that the Court in Nairobi HCCC No.337 of 2008: Peter Otieno Ouma vs Attorney General awarded Ksh.4,000,00 while in Nairobi HCC No.196 of 2008; Peter Omari Ogenche vs Attorney General an award of Ksh.3,500,000. In all Counsel pointed out that the injuries were not as severe as the present case. Counsel as such urged the Court to be guided by these decisions in making this determination.
59. Equal dependence in terms of quantum of compensation was placed in inter alia Civil Case Bo.197 of 2012; George Efedha Madora v Attorney General and Khalid Salim Ahmed v Attorney General and a
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1. The Petition dated 29th April 2021 is supported by the 1st Petitioner’s Affidavit by Dr. Annette Mbogoh and the 2nd Petitioner’s affidavit in support and further affidavits dated 29th April 2021, 5th May 2022, 10th September 2022 and 8th September 2024.
2. The Petition is founded on the Petitioners’ assertion that the 1998 U.S. Embassy bomb attack by Al Quada terrorists was caused by Government of Kenya’s manifest neglect in to heeding repeated early warnings, thereby failed to detect, prevent and stop the terrorist attack. The Petitioners thus contend that the Kenyan Government failed to discharge its domestic and international obligation of protecting Kenyan citizens and thus violated their constitutional rights considering that 201 Kenyans lost their lives, while many others were maimed, and others suffered serious psychological trauma a result of the said terrorist act. The Petitioners aver that despite the loss and damage; the Government did not give the victims and their families adequate compensation. This situation, they aver, has worsened the after-effects of the tragedy.
3. Accordingly, the Petitioners seek the following reliefs against the Respondents:
a) A declaration that the Kenya Government failed to take the necessary steps to detect, prevent and stop the 1998 U.S. Embassy Bombing terrorist attack as the entire planning and execution of the attack or likelihood of an attack was known by the State and if not, the attack should have reasonably come to the knowledge of the State.
b) A declaration that with the general information and sufficient intelligence on a possible attack the 2nd Respondent and officers working under him were in complete dereliction of their duties and obligations under Section 14 (1) of the repealed Police Act, Cap. 84.
c) A declaration that the Respondents compromised or violated the rights to life, security of Person and the legitimate expectation of the of the Petitioners and the estates in whose behalf they bring this suit under Section 70 (a), 71 (1), 74 (1) of the repealed Constitution, Article 26 and 29 of the Constitution of Kenya, Article 4 and 6 of the African Charter on Human and People's Rights and Article 3 of the Universal Declaration of Human Rights.
d) A declaratory order directed at the Attorney General to advise the President to set up a commission of inquiry to inquire on: the security failures leading to the 1998 U.S embassy terrorist attack, culpability of state institutions and state officers in the attack and recommendations for their prosecutions.
e) A declaration that the state bears an obligation to provide adequate, effective and prompt compensation/ reparations to all victims of the 1998 U.S Bomb last victims for various forms of harm suffered.
f) An order directed at the Attorney General to within 6 months of the Court judgment present a report to the Court on the steps taken by the government to:
i. File an international jurisdiction case for compensation of all victims and their families against the Republics of Sudan and Iran and or steps taken to obtain reparations from the countries.
ii. Obtain compensation for victims from Al-Qaeda assets and BNP Paribas S.A. (BNPP), a global financial institution headquartered in Paris
iii. Seek an acknowledgment of responsibility from the Republics of Sudan and Iran.
g) A declaration that as a result of the breach of rights enumerated above, the Petitioners have suffered damages, pain and suffering.
h) A declaration that each of the Petitioners are therefore entitled to special, general and exemplary damages against the Respondents herein jointly and/or severally.
i) An order for compensation as enshrined and provided for under Article 23(e) of the Constitution made up of special damages for the expenses incurred and the damages for loss of lives, general damages and exemplary damages pursuant to the declaration prayed above for each of the petitioners.
j) Costs of the Petition be provided for.
Petitioners’ Case
4. The Petitioners rely on various reports on U.S. Embassy bombing in Kenya and Tanzania as well as proceedings of Court cases that took place in the United States in urging that the Kenya Government has adequate early warnings to thwart the attack. These Reports and cases are detailed in the affidavit of Dr. Annette Mbogoh, the 1st Petitioner’s Executive Director. The cases are: US Supreme Court case of Caroline Setla Opati (suing as the Executrix of the Estate of Caroline Setla Opati v Republic of Sudan; Ministry of External Affairs and Ministry of Interior of the Republic of Sudan; United States District of Columbia, Civil Action No. 99 125 (JMF) Odilla Mutaka Mwani, et al, v Al Qaeda, victims of 1998 US bomb blast tragedy; Mary onsonga v Republic of Sudan; Unites States of America v Ahmed Khalfan Ghailan, Defendant, 761 F Supp. 2d 167 (United States District Court, S.D New York). The Reports relied upon include 9/11 Commission Report; Unheeded Warnings: A Special Report, before bombings, Omens and fears; Report of the accountability Review Boards, Bombings of the US Embassies in Nairobi, Kenya and Dares-salam, Tanzania; Anatomy of a Terrorist Attack: An indepth investigation into 1998 Bombings of US Embassies in Kenya and Tanzania.
5. Relying on these reports, the 1st Petitioner’s director swore that from what can be discerned in the reports, the initial plans to attack the U.S. embassy in Nairobi by Al Qaeda began in 1993. That it is documented that Al Qaeda operative in charge of the matter lived in an apartment in Nairobi where the leaders held their meetings and further set up a makeshift laboratory for developing their surveillance photographs.
6. She stated it is further documented that in August 1997, the Federal Bureau of Investigations (FBI) raided the house of Wadih El Hage in Nairobi, one of the terrorist managers. It is alleged that the FBI found a letter in his computer’s hard drive informing that there was a Bin Laden cell in Nairobi and his call was to kill Americans. That around May 1998, the terrorists were residing in Runda estate.
7. Soon thereafter on 7th August 1998, the bombing occurred at the American Embassy in Nairobi, killing over 213 people. Among the persons were 44 American Embassy employees out of which 12 were Americans. In addition, 10 Americans and 11 Foreign Service National Employees were seriously injured. Among these was U.S. Ambassador, Prudence Bushnell and the Kenyan Minister of Commerce.
8. Further to this, over 200 Kenyans were killed and 4000 were injured from the bomb blast. The U.S. Embassy building was as well devastatingly damaged. It is noted that much of death and injury was caused by the secondary fragmentation caused by the bomb blast.
9. The Petitioners depone that following the bombing attack, they lost their loved ones while others were seriously injured. They aver that their lives were never the same again. Moreover, the life that followed was one of pain, sadness, anger, stress and trauma. It is noted that some of the injured persons later on succumbed to their injuries while others still suffer illness related to the bomb last including cancer. Most continue to be on medication support which in most instances is beyond their reach.
10. Some of the sufferings and ailments are outlined as: deep cut wounds, spinal injuries, eye injuries that led to partial and total loss of vision, nasal blockage, sneezing and loss of smell, hearing loss, mental health problems, stroke, peptic ulcers and loss of limbs and mobility. Accordingly, it is argued that the 1998 U.S. Embassy bombing left a grave impact on the Petitioners.
11. The Petitioners claim that the families of the United States government employees who were killed and injured, filed cases seeking compensatory and punitive damages from Sudan and Iran owing to their critical support of Al Qaeda. In the cases, these parties were awarded 4.3 billion dollars. It is noted that the Petitioners herein were not included in these suits as were neither American citizens, employees or contractors as guided by the American Foreign Sovereign Immunity Act (FSIA).
12. The Petitioners are aggrieved that while America sought compensation for its people, the Kenyan government has failed and is unwilling to pursue compensation for the Kenyan victims of the bombast attack. They assert that the State has a national and international obligation to ensure the realization of an effective right to reparation including compensation for all victims of the 1998 bombing attack.
13. That in the Report (AM 3)- ‘the 9/11 Commission Report’ it is documented there was substantial planning of the attack which had commenced as early as December, 1993. That it is recorded that by then, Al Qaeda operatives had began casing targets in Nairobi and had set up a makeshift laboratory in an apartment in Nairobi for developing surveillance photographs and the Al Qaeda leaders based in Kenya or traveling to Kenya would meet there.
14. That in the Report (AM 4) , Anatomy of a Terrorist Attack: An in-depth Investigation into 1998 Bombings of U.S Embassies in Kenya and Tanzania, it is recorded that in 1997, under the Kenyan Police accompanied by CIA and FBI disguised as searching for stolen goods raided the House of EL Hage in Nairobi, two days after he returned from Afghanistan, in which they found a computer and downloaded files and also seized correspondences. That the Report details contents of a disturbing letter believed to have been authored by Fazul Abdullah aka Harun Fazul, who was later found to have been one of the masterminds of Nairobi bombing. The letter had contained details of the East African terrorist cell.
15. That in the said report, it was also recorded that that 9 months before the attack, an Egyptian named Mustafa Mahmoud Said Ahmed who was tried and deported by Tanzania, had walked into the Embassy and told the Central Intelligence Agency (CIA) officers that there was a plan to detonate a bomb in the underground diplomatic parking lot. The informant was subsequently turned over to the Kenyan authorities but they negligently failed to act on the information that was availed to them.
16. In the Report (AM 5) ‘Unheeded Warnings: A Special Report, before bombings, Omens and fears’, it is reported that the former U.S. Ambassador, Prudence Bushnell had warned incessantly of an imminent terrorist attack. That this Report further details the fact that the Central Intelligence Agency (CIA) had repeatedly informed State Department Officials in Washington and Kenya Embassy there was an active terrorist cell in Kenya connected to Osama Bin Laden who was masterminding the attack. That likewise, the report reckons that Kenyan Police accompanied by CIA and FBI raided the House of Wadih El Hage in August 1997 and found a computer from which they downloaded files and discovered a letter indicating the existence of a an ‘East African cell’ of Osama Bin Laden group.
17. That in the Report (AM 6)- Report of the Accountability of the Review Boards, Bombings of U.S. Embassies in Nairobi, Kenya and Dares-Salaam, Tanzania- it documents the security concerns the American Ambassador had over the vulnerability of the Embassy to the attack one of which was the failure by the Embassy to have a radio frequency dedicated to security communications because this request had repeatedly been rejected by the Kenyan Government.
18. That in the Criminal Case (AM 7)- United States v Ahmed Khalfah Ghailan, Defendant, 761 F. SUPP 2d 167 United States District Court, S.D. New York, the provided crucial facts on the presence of a terrorist cell and the well deliberated planning of US Embassy terrorist attack starting 1990s.
19. Consequently, the Petitioners argue that the government was negligent and ignored intelligence or information at its disposal to protect the people of Kenya.
20. Equally, the Petitioners argue that the government failed to increase security at the Kenyan borders and vet all persons coming into the Country thus making it easier and country vulnerable to the attack. The government is also accused of allowing or being complacent in failing to stop the smuggling of money into the Al Qaeda cells in the country.
21. In a further affidavit, the 2nd Petitioner quoting the book by the Prudence Bushnell, Terrorism, my story of the 1998 Betrayal and U.S Embassy bombings Resilience, 2018, states that it is evident that the law enforcement and intelligence knew about Al Qaeda since 1996.
22. Additionally, the 6th Petitioner a survivor of the 1998 bombing attack acknowledges his awareness of the publication, Beyond the scars: A Medical History of the 1998 Nairobi Bombing of the American Embassy in a further affidavit. He avers that it is a comprehensive report on the management of bomb blast injuries and effects that resulted following the attack. He as such, adduced this Report so that this Court can appreciate the devastating medical effects of the bomb blast and be guided in determination of the issue of damages.
23. That unlike in United States where Courts have ordered compensation of victims who are US citizens and contractors to be paid by Republic of Sudan and Islamic Republic of Iran for their complicity in Al Qaeda attacks, The Petitioners contend the Respondents herein have not only failed to compensate their victims but have also neglected to demand for compensation or reparations from Iran, Sudan and BNP Paribas S.A. (BNPP), the States or institutions that provided material support to the terrorists and have thus violated their national and international obligation to provide adequate, effective and prompt compensation to all victims.
24. Furthermore, despite the Respondents-through the Principal Secretary Ministry of Interior, expressly pledging in writing to pay compensation on 19th June, 2015; they have failed and refused implement this assurance.
25. The Petitioners in addition point out that constitutional petitions are not time barred and that one can neither acquiesce or waive a fundamental right and freedom as protected in the Constitution. The Petitioners contend that the government’s continued failure to pay reparation is a continuing violation. For this reason, it is argued that the doctrine of inordinate delay is not applicable in this matter.
26. The Petitioners aver that the medical and life situations of many families and victims have incapacitated them financially hence the extensive period taken in filing this suit.
Respondents’ Case
27. The Respondents responded to the Petition through the Replying affidavit of the 1st Respondent’s Principal Secretary, Dr. (Eng.) Karanja Kibicho, CBS, sworn on 12th April 2022. (the only affidavit on behalf of the Respondents).
28. On the onset, he contends that the Petition lacks both a factual and legal basis especially the assertion by the Petitioners that the government knew about the attack yet failed to take the necessary steps to prevent the attack. He avers these allegations are inaccurate and without any basis.
29. First, he depones that the government did not know about the bombing attack or its likelihood as alleged. He avers that in the period leading up to the attack, there was no specific or actionable intelligence or warning of the attack. He states that the only information the government had was the heightened terrorist activities in the region.
30. He depones that this fact is discernable from annextures marked AM 3, AM 4, AM 5 and AM 6. This aspect was also highlighted in the case of Monica Ombati v Republic of Sudan (AM 2), James Owen v Republic of Sudan (AM 2) and US V Ahmed Khalfan Ghailani (AM 7). In view of this, he argues that the Petitioners reliance of the said reports and court cases to prove existence of this intelligence has no basis.
31. He states that prior to the bombing attack, when Kenyan authorities were alerted about persons suspected to be terrorists, swift action was taken as is evident in the Wadil el Hage case. Actually, he informs that this capture was a result of the concerted effort of the Kenyan police with the CIA and FBI (AM 4). Equally, in 1997 when the Nairobi Branch of Islamic Charity, Al Haraain Foundation was suspected of plotting terrorist attacks against Americans, the police moved swiftly and arrested 9 of their members (AM 5). Correspondingly, when the Egyptian, Mustafa Mahmoud Said Ahmed walked in the U.S. Embassy and reported a suspected terrorist attack, the police interrogated him and later deported him.
32. Further to this, he contends that the Petitioners did not adduce any evidence to demonstrate that the Kenyan borders were not well guarded and persons entering not properly vetted. In the same breath, he argues that the allegation of smuggled money under the government’s nose, was also not proved just like the other claims against the government.
33. In fact, he states that the government was absolved from liability for the attack in Otolo Margaret Kanini and others v Attorney General and others (2022) eKLR. Considering this, he contends that the pronouncement in this case, renders the instant Petition baseless.
34. He depones that as soon as the bombing attack happened, the government coordinated the initial rescue efforts and later efforts by local and international NGOs. The government as well coordinated the emergency assistance from Israel Defense Forces, the United Kingdom, France, Denmark, Japan and United Nations.
35. The then President, H.E. Daniel Arap Moi further set up the National Disaster Emergency Fund known as Njonjo Fund. This fund received and disbursed funds to victims or their families so as to cater for funeral expenses and also compensation. As such, he stresses that the government expended every effort to ameliorate the conditions of the victims and their families. Additionally, suspects associated with the attack were also apprehended, charged, convicted, sentenced and imprisoned in the U.S. (AM 7 and hereto KK 3 and KK 4).
36. Furthermore, he points out that Sudan and Iran being sovereign states, the government cannot pursue them in the manner sought by the Petitioners owing to the doctrine of sovereign immunity. He as well notes that while other Kenyans have successfully sued Sudan and Al Qaeda in US courts, Kenya lacks locus standi under the US Foreign Sovereign Immunity Act to do so.
37. Nonetheless, he argues that there are no provisions in the Government Proceedings Act or other Act that would allow the government to institute such claims on behalf of the victims. He on the flipside argues that the victims are not without remedy as the victims can sue the terrorist in Kenyan Courts.
Petitioners’ Submissions
38. On 8th September 2024, the Petitioners through Khaminwa and Khaminwa Advocates filed submissions and listed the issues for determination as: whether the Petition was filed within a reasonable time frame, whether the Petition meets the requirements of a constitutional petition, whether the Respondents have a responsibility to prevent and combat terrorism, whether the Kenyan government had prior intelligence over the U.S. Embassy bombing terrorist attack, whether the reports, publications and judgements relied upon by the Petitioners are admissible, whether state has an obligation to pay compensation/ reparation to all victims of the 1998 U.S Bomb Blast victims, whether the state violated the rights of the Petitioners and their children, and whether a Commission of Inquiry should be formed.
39. On the first issue, Counsel submitted that the Petitioners have been on a long quest to access justice and reparations as outlined in the Petitioners’ affidavits. Counsel noted that the 23-year delay is not inordinate. This is because, the bomb blast had severe effects on the health of the victims which included death and so most victims suffered lifelong incapacity and others disabled. Counsel submitted that owing to the gravity of these effects the Petitioners first attended to their health concerns before seeking justice. Counsel added that this caused a financial strain which impacted on the Petitioners ability to file a suit promptly, being that their financial resource was being utilized for their treatment. Counsel noted that this was the reason, the Petitioners approached the 1st Petitioner for legal assistance.
40. Counsel further added that the government had promised the Petitioners that it would compensate the victims and their families however this legitimate expectation was violated. This in addition increased in the delay in filing this suit.
41. That said, Counsel stressed that constitutional petitions do not have timelines. Reliance was placed in Eliud Wefwafwa Luucho and 3 others v Attorney General [2017] eKLR where it was held that:
“ The question of limitation of time in regard to allegations of breach of fundamental rights has in many cases been raised by the State and our courts have consistently held that there is no limitation with respect to constitutional petitions alleging violation of fundamental rights with a section of our judiciary holding that a court must always consider whether the delay in filing a petition alleging violation of constitutional rights is unreasonable and prejudicial to a respondent’s defense and further the state cannot shut its eyes on its past failings nor can the court ignore the dictates of transitional justice discussed below.”
42. Like dependence was placed in Nairobi Pct. 104 of 2018 Legal advice Centre T /A Kituo Cha Sheria V A.G and Others and Wamwere & 5 others v Attorney General Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR).
43. Turning to the second issue, Counsel submitted that the Petition calls the Court to interpret and apply the provisions of the former Constitution and current Constitution. Counsel submitted that the Petitioners rights under Section 70 (a), 71(1) and 74 (1) of the repealed Constitution and Articles 26(1) and Article 29 of the Constitution had been violated by the Respondents. In light of this and relying in the opine in Mumo Matemu v Tmsted Society of Human Rights Alliance & 5 others [2013] eKLR upholding the threshold in the Anarita Karimi case, Counsel submitted that the Petition meets this threshold.
44. On the third issue, Counsel submitted that the obligation placed on the State to protect the lives and property of its people stems from a holistic interpretation of Article 1 of the Constitution. As such, Counsel argued that there is a negative obligation on the part of the government in general and the police not to violate the rights and fundamental freedoms, but the law imposes a positive obligation on the part of the government to protect its people as guided in Association of Victims of Post Electoral Violence and Interights vs Cameroon (272/2003).
45. Like dependence was placed in Mahmut Kaya vs. Turkey Application No. 22535/93 and Charles Murigu Murithii & 2 others v Attorney General [2015] eKLR.
46. Counsel on the fourth issue submitted that to succeed in this issue, it must be demonstrated that the State had prior information of an action to be held liable as held in Charles Murigu Muriithi (supra). Counsel emphasized that as clearly evidenced in the Petitioners affidavits, publications and reports relied upon and decided cases, the State had prior knowledge of the imminent attack set for 7th August 1998 and so the Petitioners were entitled to protection against this attack.
47. Considering this, Counsel submitted that the police failed to diligently execute their function of preventing and detecting crime, apprehending the offenders and protecting human life. Counsel added that the Petitioners had an expectation that the action of the police would be efficient in preventing and detecting the terrorist attack however this expectation was violated.
48. To buttress this point reliance was placed in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it was noted that:
“For an expectation to be legitimate, it must be founded upon a promise or practice by tl1e public authority, that is said to be bound to fulfil the expectation.”
49. In addition, Counsel submitted that the government ought to be held liable for its action and non-action in this matter. Counsel stressed that the government should not invoke the defence of global terrorism as a scapegoat to abdicate its responsibility to prevent the 1998 bomb blast attack. Reliance was placed in Cameroonian case of 272/03: Association of Victims of Post Electoral Violence· & Interights/ Cameroon where the African Commission held as follows:
“Consequently, in having failed to prevent the 1992 post electoral violence even though there were early warning signs (evidently) of the events in question and not having obtained the intended results mentioned above, the State of Cameroon has failed in its obligation of Result imposed on it by Article 1 of the African Charter, and that in consequence the Respondent State is hardly in a position to invoke the circumstances of force majeure.”
50. Comparable reliance was placed in Mahmut Kaya (supra) and Osman v the United Kingdom (87/1997/871/1083).
51. Turning to the next issue, Counsel highlighted that the Respondents had not challenged the contents of the Reports and Judgments. In this matter, Counsel, relied in Section 60(2) of the Evidence Act which provides that on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. Counsel submitted that the reports, publications and judgments relied on by the Petitioners are relevant books and documents made from reliable credible U.S institutions and a distinguished U.S diplomat. Equally, Counsel submitted that Section 82(f) of the Evidence Act allows parties to rely on judgments of a commonwealth countries or foreign countries as public documents.
52. On the sixth issue, Counsel submitted that the victims and families of the 1998 bomb blast attack are yet to be compensated in comparison to the American citizens, Kenyan employees and contractors working in the U.S. embassy. As deponed by the Petitioners, Counsel submitted that the government had not taken any action to ensure that the Republic of Sudan and Iran are accountable and in addition compensate the affected victims and their families.
53. Counsel stressed that reparation is an international law obligation provided under the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law which were adopted and proclaimed by the United Nations General Assembly Resolution 60/147 on 16th December 2005 and the general principle 'Responsibility of States for Internationally Wrongful Acts’ .Equally, Counsel submitted that this is a domestic legal obligation on the government. Counsel submitted that the Petitioners having proved their allegations against the government, they were entitled to reparation.
54. Reliance was placed in Judgment No. 8 in the Case Concerning the Factory at Chorz6w (Claim for Indemnity) Jurisdiction) (the Chorzow Factory) where it was held that:
“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.”
55. Comparable dependence was placed in Belgium v, Spain - Barcelona Traction, Light and Power Company, Limited (New Application: 1962) -Judgment of 5 February 1970 - Second Phase, the Matter of African Commission on Human and Peoples' Rights v. Republic of Kenya Application No. 006/2012 and 245/02: Zimbabwe Human Rights NGO Forum v Zimhabwe.
56. Counsel on the seventh issue, submitted that the government by their actions and inaction had indeed violated the Petitioners rights to life and security of person as enshrined under Section 70 (a), 71(1) and 74 (1) of the repealed Constitution and Articles 26(1) and Article 29 of the Constitution, as such the Petitioners are entitled to compensation.
57. Counsel submitted that the Petitioners in their affidavits had outlined the various health and economic issues that they had endured as a result of the bombast. Counsel emphasized as already submitted that the Petitioners are entitled to be paid compensation by the government. Reliance was placed in Association of Victims of Post Electoral Violence and interights/Cameroon (Supra) where it was held that:
“It therefore follows that the government should pay compensation for the prejudices suffered. Despite the fact that the government is denying it, it understood that it could not remain insensitive to its obligation to pay fair compensation to the victims, for this reason it set up a Committee to assess the damages suffered by the complainants.”
58. On the appropriate amount for compensation, Counsel submitted that Courts have awarded substantial compensation for victims involved in similar violations. Counsel highlighted that the Court in Nairobi HCCC No.337 of 2008: Peter Otieno Ouma vs Attorney General awarded Ksh.4,000,00 while in Nairobi HCC No.196 of 2008; Peter Omari Ogenche vs Attorney General an award of Ksh.3,500,000. In all Counsel pointed out that the injuries were not as severe as the present case. Counsel as such urged the Court to be guided by these decisions in making this determination.
59. Equal dependence in terms of quantum of compensation was placed in inter alia Civil Case Bo.197 of 2012; George Efedha Madora v Attorney General and Khalid Salim Ahmed v Attorney General and a
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