JUDGMENT
1. This Petition asks a question that often comes up in numerous constitutional petitions. What should Courts do when citizens claim their fundamental rights were violated long ago, under the repealed Constitution that is no longer in force, but they bring the case now under the more stronger and elaborate protections of the 2010 Constitution?
2. The Petitioners herein allege to have been unlawfully arrested, detained and tortured in the year 1995 under the old Constitution. Back then, the machinery for enforcing fundamental rights was narrower and more onerous than it is today. Years later, under the 2010 Constitution, which has stronger and more accessible protections, they have come to court saying: “My rights were violated back then, and I want justice now.” This Court has to decide whether today's stronger machinery may be used to redress yesterday's wrongs, and whether the passage of time bars that redress.
3. The Petitioners are Kenyan citizens and persons entitled to the enjoyment of the fundamental rights and freedoms of an individual as enshrined in the Constitution of Kenya, 2010. They allege that on diverse dates in the year 1995, officers of the Kenya Police, operating as Special Branch Police Officers attached to stations within this Court's jurisdiction, unlawfully arrested them, detained them without trial and, while they were in custody, subjected them to assault, inhuman and degrading treatment, all without lawful justification and without according them the protections then guaranteed under Chapter V of the repealed Constitution.
4. The petitioners contend that these acts amount, in substance, to violations of rights now protected under Articles 25(a), 25(d), 28, 29(f), 49 and 51 of the 2010 Constitution, and seek declarations to that effect, together with an award of damages, costs and interest.
5. This Petition was filed in this Court on 1st August, 2025, some thirty years after the impugned events of 1995, and some fifteen years after the promulgation of the Constitution on 27th August 2010.
6. The Respondent, the Hon. Attorney General, sued on behalf of the Government of Kenya and its agents, has opposed the Petition by way of Grounds of Opposition dated 1st October 2025. No replying affidavit was filed; the Respondent elected to stand on the Grounds of Opposition alone, and the matter proceeded to determination on the pleadings and the parties' rival submissions.
7. The 1st to 4th Petitioners' case, as pleaded and sworn to in their respective supporting affidavits, is that they were each arrested by Kenya Police Officers in the year 1995 on suspicion of being members of the “February Eighteen Revolutionary Army” (FERA). They were never informed of the reason for their arrest. They were held in police custody beyond the period then permitted by section 72 of the repealed Constitution, for periods of 8 weeks, 3 days, 1 year and 2 weeks respectively. They allege to have been assaulted while in custody in a manner they characterise as torture or, in the alternative, inhuman and degrading treatment contrary to section 74 of the repealed Constitution.
8. The 5th and 6th Petitioners, on the other hand, plead that their respective parents were among the 1st to 4th Petitioners arrested in 1995. They were aged 5 and 3 years respectively at the time, and were left without parental care upon the arrest and prolonged, incommunicado detention of their parents. To date they say they have never recovered the paternal presence, love and care of which they were deprived as children, and that they suffered as minors on account of that deprivation.
9. The petitioners all urge that whereas the Respondents Special Branch Police officers were entitled to arrest the suspects on suspicion of being members of the outlawed “FERA” group, they had no lawful, legal or Statutory power to torture and to keep the 6 petitioners in their custody for more than 24 hours and further deny them communication with members of their family, friends and advocates.
10. The Petitioners aver that they lacked the awareness, and the means, to institute proceedings of this kind at the material time. They further urge that the political and institutional environment of the 1990s, and the low public confidence in the judicial process of that era, derailed their efforts to pursue redress. It was only after the promulgation of the 2010 Constitution, which for the first time gave meaningful and practical content to their right of access to this Court under Article 22 and to an effective remedy under Article 23, that pursuing this claim became a realistic prospect.
11. The petitioners pray for:
(a) a declaration that their Fundamental Rights and Freedoms from torture were contravened and grossly violated under sections 72 and 74 of the repealed Constitution, and under Articles 25(a), 28, 29(f) and 49 of the Constitution;
(b) a declaration that they are entitled to the payment of damages and compensation,
(c) general and exemplary damages; (c) costs; and
(d) such further or other relief as the Court may consider just.
12. The Respondent's Grounds of Opposition, dated 1st October 2025, may fairly be summarised as follows:
(a) the inordinate delay in instituting the suit has deprived the Respondent of a fair opportunity to defend the claim since most of the police officers alleged to have effected the arrest having since retired or died;
(b) imposing liability in circumstances where witnesses and official records are no longer available offends the Respondent's own right to a fair hearing under Article 50;
(c) the Petition was filed some fifteen years after the promulgation of the Constitution 2010 without explanation for that delay;
(d) the Petitioner's silence for that period amounts to acquiescence and a waiver of the rights now asserted;
(e) the Constitution cannot be applied retrospectively to conduct said to have occurred in 1995, prior to its promulgation;
(f) a mere allegation that fundamental rights have been contravened does not entitle a petitioner to a remedy absent proof of real, actual and evident contravention;
(g) the Petition fails to meet the constitutional standard of precision set out in Anarita Karimi Njeru v Republic (1979) KLR 154, in that it broadly invokes Articles 22, 23, 25(a), 25(d) and 29(f) of the Constitution and section 74 of the repealed Constitution without demonstrating how those provisions were contravened;
(h) the allegations are misconceived, unsubstantiated and bad in law;
(i) the Petition is, in its entirety, wild, alarming, fictitious, vexatious and frivolous and warrants dismissal; and
(j) the Petitioner has not satisfied the requirements set out in the authorities governing the grant of the orders sought.
13. Arising from the pleadings and the rival positions of the parties, the following issues fall for determination:
(a) Whether the Petition meets the threshold of specificity and precision demanded of constitutional petitions under the Anarita Karimi Njeru doctrine;
(b) Whether, and to what extent, the Constitution of Kenya, 2010 may be invoked in respect of conduct alleged to have occurred in 1995, prior to its promulgation;
(c) Whether the Petition is barred by inordinate and unexplained delay, and if so with what consequence;
(d) Whether the Petitioners' fundamental rights and freedoms were violated by the Respondent's agents; and
(e) What relief, if any, is available to the Petitioners.
14. This Court's jurisdiction to hear and determine this Petition is not in dispute. Article 165(3)(b) of the Constitution confers upon the High Court jurisdiction to determine questions concerning the denial, violation, infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
15. Article 22 confers standing on every person to institute proceedings claiming that a right or fundamental freedom has been denied, violated, infringed, or is threatened. Article 23(3) on the other hand equips the Court with a wide, non-exhaustive remedial jurisdiction, including declarations of rights and an award of compensation. Nothing in the Grounds of Opposition disputes this Court's jurisdiction as such; the objections go instead to the sufficiency of the pleadings, the temporal reach of the provisions invoked, and the effect of delay.
16. The starting point is Anarita Karimi Njeru v Republic [1979] KLR 154, itself decided on an application brought under section 84 of the repealed Constitution. The Court there held that:
“……a person seeking constitutional redress must: "set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed."
17. That formulation has proved remarkably durable, surviving the transition from the repealed Constitution to the Constitution of Kenya, 2010, and has been repeatedly applied by this Court, the Court of Appeal and the Supreme Court in the intervening decades.
18. The Court of Appeal, in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, Civil Appeal No. 290 of 2012; [2013] eKLR, cautioned against reading the Anarita Karimi Njeru principle as a demand for exactitude. It opined that the requirement of precision exists so that the real issues in a petition can be properly defined, enabling the Court to apply its mind to them and the respondent to know the case it must meet, not to erect a technical barrier that defeats otherwise genuine claims on account of inelegant drafting.
19. The Supreme Court endorsed the same principle in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, Petitions 14, 14A, 14B & 14C of 2014; [2014] eKLR, holding that a party invoking Article 22(1) must show the right said to be infringed and the basis of the grievance, there being a necessary link between the aggrieved party, the provision said to be contravened, and the manner of contravention.
20. Ground 10 of the Grounds of Opposition invokes this doctrine, complaining that the Petition broadly cites Articles 22, 23, 25(a), 25(d) and 29(f) of the Constitution and section 74 of the repealed Constitution without demonstrating how those provisions were contravened.
21. Had the Petitioners done no more than recite that list of provisions, the objection would be well founded, and this Court would have been bound, on the authority of Anarita Karimi Njeru (supra).
22. The Petition before this Court, however, does more than recite a list of Articles. It identifies an approximate date, a specific category of state agent (police officers attached to an identified station), a described sequence of events (arrest without being informed of the reason, prolonged custody, and physical assault while detained), and the provisions said to correspond to each element of that narrative. That is sufficient, applying Mumo Matemu, to satisfy the Anarita Karimi Njeru threshold at the level of pleading.
23. Whether the Petitioner can substantiate those averments by evidence is a distinct question, addressed later in this judgement and is not to be conflated with the separate question of whether the pleading itself is precise enough to be justiciable.
24. Fundamental rights and freedoms prior to the Constitution of Kenya, 2010. Ground (e) turns on the relationship between the repealed Constitution and the Constitution of Kenya, 2010. It is accordingly necessary to examine, in some depth, the protection Kenyan constitutional law afforded to the rights the Petitioners invoke, as they stood in 1995.
25. Chapter V of the repealed Constitution — sections 70 to 86 was headed "Protection of Fundamental Rights and Freedoms of the Individual." Section 70 set out, in a single omnibus provision, the catalogue of protected rights and freedoms, expressed as being "subject to respect for the rights and freedoms of others and for the public interest."
26. The sections that followed particularised specific protections. Section 71 (right to life), section 72 (protection of the right to personal liberty), section 73 (protection from slavery and forced labour), section 74 (protection from inhuman treatment), section 75 (protection from deprivation of property), section 76 (protection against arbitrary search or entry), section 77 (provisions to secure protection of the law), section 78 (freedom of conscience), section 79 (freedom of expression), section 80 (freedom of assembly and association), section 81 (freedom of movement), and section 82 (protection from discrimination). Section 84 supplied the enforcement mechanism, and sections 83 and 85 addressed derogation and the preservation of public security.
27. The two provisions material to this Petition existed, in substance, at the time of the events complained of. Section 72 protected the right to personal liberty, prohibiting arbitrary arrest or detention and requiring a person arrested to be informed as soon as reasonably practicable of the reasons for the arrest and to be brought before a court without undue delay.
28. Section 74(1) provided, in terms materially identical to those later carried into Article 25(a) and Article 29 of the Constitution, that "no person shall be subjected to torture or to inhuman or degrading punishment or other treatment."
29. It was precisely section 74(1) that the Supreme Court applied, nearly thirty years after the fact, in Wamwere & 5 others v Attorney General, Petition 26, 34 & 35 of 2019 (Consolidated); [2023] KESC 3 (KLR), to vindicate the rights of persons brutalised by police and General Service Unit officers during the 1992 "Freedom Corner" protests.
30. Section 77 of the repealed Constitution was the analogue of today's Article 50, guaranteeing a fair hearing, including the presumption of innocence and adequate time and facilities to prepare a defence for a person charged with a criminal offence. It follows that the substantive core of the rights the Petitioner invokes, freedom from arbitrary arrest and detention, and freedom from torture or inhuman treatment was already fully justiciable in Kenyan law in 1995. The 2010 Constitution did not invent these protections, it re-enacted, consolidated and in places strengthened them.
31. What did materially change in 2010 was not the existence of these core rights but the architecture surrounding their enforcement. Three differences are of particular relevance here. First, standing; enforcement under section 84 of the repealed Constitution was confined to a person alleging that a protective provision "has been, is being or is likely to be contravened in relation to him", a personal-standing model considerably narrower than Article 22(2) of the Constitution, which expressly extends standing to persons acting in the public interest, on behalf of another who cannot act in their own name, or as a member of, or in the interest of, a group or class of persons.
32. Second, procedure; rules made pursuant to section 84 commonly required a bench of three judges to hear a petition alleging contravention of Chapter V, save where a single judge certified the application frivolous or vexatious. A structural constraint widely regarded, both in academic commentary and in subsequent judicial reflection, as having contributed to the slow and uneven vindication of Chapter V rights during the currency of the repealed Constitution. No equivalent constraint attaches to proceedings under Article 165(3)(b) of the Constitution.
33. Third, remedy and judicial temperament; the derogation clause in section 83 of the repealed Constitution was broadly framed, and Kenyan courts, particularly through the one-party period and its immediate aftermath, are generally understood to have applied Chapter V restrictively.
34. This Court is mindful of the observation made in the context of Chapter V litigation, that fundamental rights and freedoms "had suffered erosion during the one party system" and required a correspondingly generous, purposive approach to be given practical effect (see the discussion in Nakusa v Tororei & 2 Others (No. 2), Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565).
35. The significance of this history for the present Petition is twofold. On one hand, it confirms that the Petitioner's underlying grievance was not, in 1995, a legal vacuum. Sections 72 and 74 of the repealed Constitution supplied a substantive right and, through section 84, a route imperfect and procedurally more onerous than today's to a remedy.
36. On the other hand, it explains why claims of this vintage so frequently reach this Court only after 2010. The practical and psychological barriers to enforcement under the repealed constitutional order were real, and their removal by the Constitution of Kenya, 2010 forms part of the factual matrix against which delay must be assessed.
37. It also disposes of Ground (9) of the Grounds of Opposition, that a mere allegation of contravention does not, without more, entitle a petitioner to a remedy. That ground correctly states an unremarkable evidentiary principle, applicable in equal measure under both constitutional orders, but does not by itself resolve any of the threshold issues raised in this Petition; it goes to proof at trial, not to the viability of the claim as pleaded.
38. This Court accordingly finds that the substantive rights the Petitioner invokes existed, in materially equivalent form, under the repealed Constitution at the time of the alleged 1995 events.
39. I shall now turn to the distinct question of whether, and how, those rights may now be enforced through the constitutional and remedial machinery introduced in 2010.
40. The governing authority on this question is the Supreme Court's decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. The Grounds of Opposition attribute a passage on the progressive, non-retrospective character of enacted laws to a Supreme Court motion; whatever the precise provenance of that passage, the applicable principle is authoritatively and more precisely stated in the Macharia decision, and it is that decision this Court applies.
41. In Macharia case (supra), the Supreme Court held that a Constitution is not necessarily subject to the same rule against retroactivity as ordinary legislation, since a Constitution "looks forward and backward" in re-engineering the social and political order, and may embody retrospective provisions or provisions with retrospective ingredients.
42. The Court nonetheless cautioned that, in determining whether a particular provision applies retrospectively, due regard must be paid to its language, and that such caution is heightened where retrospective application would divest a person of rights already vested before the Constitution's commencement. Where the language of a specific provision contains, in the Court's own phrase, "not even a whiff of retrospectivity," that provision cannot be applied to pre-promulgation conduct.
43. This qualified test has since been applied by the Supreme Court itself in Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties), SC Petition No. 37 of 2014; [2019] eKLR, and was considered by the Court of Appeal in the Article 47 fair-administrative-action litigation reported at Petition 14 of 2017 (Kenya Law), where it was held that Article 47, which introduced a materially new statutory-cum-constitutional guarantee with no direct repealed-Constitution analogue, could not be read backward to conduct pre-dating its enactment.
44. Ground 8 of the Grounds of Opposition, is framed as a blanket proposition that "the Constitution cannot be applied retrospectively," and states the Macharia principle imprecisely. The correct inquiry is provision-specific, not instrument-wide: the question is not whether the Constitution of Kenya, 2010 as an undifferentiated whole reaches back to 1995, but whether the particular provision on which the Petitioner's substantive claim rests carries, in Macharia's language, any "whiff of retrospectivity”.
45. More precisely in a case such as this, the question is whether the right relied upon already existed in substantially equivalent form under the law in force at the time of the impugned conduct, such that the 2010 Constitution's role is confined to supplying the forum and the remedy rather than the underlying right.
46. Applying that distinction, the Petitioner's claim, properly analysed is rooted in sections 72 and 74 of the repealed Constitution, both of which were in force and applicable to them in 1995. The petitioners are not asking this Court to apply a genuinely new substantive right retrospectively, they are asking the Court to use the current constitutional and procedural machinery, i.e Articles 22, 23 and 165(3)(b) of the Constitution to enforce a right that had already accrued to them under the law then in force.
47. That is precisely the approach the Supreme Court itself took in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), where the Court declared that the appellants' rights “under section 74(1) of the repealed Constitution” had been violated by events of 1992, and awarded damages under Article 23(3) of the Constitution of Kenya, 2010.
48. It is likewise the approach taken by this Court, on materially indistinguishable facts arising from the same FERA-related events, in Taiga Job Wanyanja & 16 others v Attorney General, Bungoma HC Petition No. 5 of 2017 (Consolidated); [2019] eKLR, and by the High Court at Nairobi in Eliud Wefwafwa Luucho & 4 others v Attorney General, Constitutional Petition No. 121 of 2016 (Consolidated); [2017] eKLR, both of which applied 2010-era procedure and remedy to pre-2010 substantive violations without giving retrospective effect to any new right.
49. The position would be materially different had the Petitioner sought to found his claim on a provision with no repealed-Constitution analogue for example, a claim resting solely on Article 47's fair administrative action guarantee, or on an economic and social right recognised for the first time under Article 43 of the Constitution. No such claim is made here. I find that even the derivative claim of the 5th and 6th Petitioners rests, as explained below, on the same underlying violation of sections 72 and 74 of the repealed Constitution visited upon their parents.
50. It follows that Ground (e) is dismissed to the extent that it is deployed to suggest that the Petitioner's claim resting on rights that pre-existed the 2010 Constitution is for that reason alone incapable of being ventilated in these proceedings.
51. It is well settled that no period of limitation under the Limitation of Actions Act applies to a claim for the enforcement of fundamental rights and freedoms (see, among others, Dominic Arony Amolo v Attorney General, Nairobi HC Misc. Civil Application No. 494 of 2003, and the discussion in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR) and Kinyanjui & 3 others v Attorney General, Civil Appeal 103 & 104 of 2018 (Consolidated); [2024] KECA 1946 (KLR)).
52. That is not, however, the end of the matter, for delay may still weigh against a petitioner where it is inordinate and unexplained. This Court has had the considerable benefit of two decisions of this Court arising from precisely the same historical episode as the one pleaded in this Petition, namely the wave of arrests, detentions and torture of persons suspected of association with the “February Eighteen Revolutionary Army” (FERA) in the greater Bungoma region in and around 1995.
53. In Taiga Job Wanyanja & 16 others v Attorney General, Bungoma HC Petition No. 5 of 2017 (Consolidated); [2019] eKLR, Riechi J was confronted with seventeen consolidated petitions brought by FERA torture victims some twenty-five years after the events complained of, and after the Respondent had raised, in materially identical terms, the objection that the petitions were time-barred. The learned Judge held:
“...where there is allegations of violation or fundamental rights by the state or its organs, a petition filed premised on the said violation cannot be limited by time unless it is demonstrated that the Petitioner slept on his rights for such a long time that the institutions of the Petition is an afterthought or amounts to an abuse of the court process. The court will be guided by the nature of the violations, circumstances but always bear in mind that state machinery can be used to intimidate or obstruct the petitioners to cover its misdeeds during that regime.”
54. Riechi J went on to cite, with approval, the following passage from Lenaola J (as he then was) in Eliud Wefwafwa Luucho & 4 others v Attorney General, Constitutional Petition No. 121 of 2016 (Consolidated); [2017] eKLR, a case concerning the same category of FERA-related violations pleaded by petitioners arrested between 1982 and 1995:
“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 are no limitation with respect to constitutional petitions alleging violation of fundamental rights... the state cannot shut its eyes on its past failings nor can the court ignore the dictates of transitional justice... My understanding of the jurisprudence on the issue of limitation is that courts will be reluctant to shut out a litigant on account of limitation of time unless there are obvious reasons to do so. In considering such delays, the court cannot avoid taking judicial notice of the immense difficulties which prevailed at the period of the alleged violations making it impossible for aggrieved persons to file cases of this nature against the government. In fact it is the promulgation of the constitution of Kenya 2010 that opened the doors of justice thereby making it possible for aggrieved persons to institute cases of this nature.”
55. Both Wanyanja and Luucho excused delays of comparable, and in respect of some of the consolidated Luucho petitioners considerably greater, length than the delay in this case, without demanding the kind of independent, contemporaneous public corroboration that the Supreme Court later required in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR).
56. Neither Riechi J nor Lenaola J treated the absence of media prominence or a documented mass protest as fatal; both proceeded on the footing that the political and institutional climate of the period between 1982 and the promulgation of the 2010 Constitution was itself a sufficient and general explanation for delay in cases of this character, arising as they did from a co-ordinated pattern of state conduct expressly designed, on the petitioners' unrebutted evidence in both cases, to intimidate victims into silence.
57. The test is fact-sensitive rather than mechanical. As the Supreme Court put it in Wamwere:
"whether a claim for violation of rights had been instituted within a reasonable time was to be determined based on the peculiar circumstances of each case."
58. In Wamwere itself, the Supreme Court excused a delay of some twenty years, setting aside concurrent findings of the High Court and Court of Appeal that the claim was time-barred. It did so, however, on a clearly articulated and evidentially grounded basis: the underlying events of the 1992 "Freedom Corner" protests were of a well-documented, high-profile, unmistakably public character; and the claims were treated by the Court as bearing the hallmarks of transitional justice, being claims against a departed authoritarian dispensation, brought once the political and institutional conditions for their ventilation had changed; and the appellants' presence at, and participation in, the specific historic events was not seriously in dispute.
59. This Court respectfully adopts and applies that reasoning to the present Petition, which arises from the same historical episode, the same geographical area, and materially the same pattern of arrest, incommunicado detention and interrogation concerning the same alleged FERA movement as was before the Court in both Wanyanja and Luucho.
60. The Petitioners' explanation, that they lacked awareness of, and the practical means to invoke, their constitutional rights during the currency of the repealed Constitution, and that it was only the promulgation of the 2010 Constitution that gave meaningful and practical content to their right of access to this Court, is not a bare or generic assertion; it is the same explanation this Court has already twice accepted in respect of the identical historical episode, and this Court sees no principled basis to depart from that consistent line of authority on the facts of this case.
61. Grounds (c) and (d) of the Grounds of Opposition are, for these reasons, not made out. This Court declines to treat the Petitioners' silence as either acquiescence or waiver; a fundamental right is not ordinarily capable of being waived by mere inaction, and in any event the explanation tendered is, on the authority of Wanyanja and Luucho, an adequate one.
62. As to the prejudice pleaded in Grounds (a) and (b), this Court notes that the Respondent has filed no replying affidavit and has placed no evidence before the Court, whether documentary or otherwise, to substantiate the assertion that the officers concerned have retired or died, or that relevant records are unavailable.
63. In both Wanyanja and Luucho, the Respondent likewise filed no affidavit evidence, and in both cases this Court declined to allow an un-particularised assertion of prejudice, made only in submissions or grounds of opposition, to defeat petitions supported by sworn, uncontroverted evidence of torture and unlawful detention by state agents. This Court adopts the same approach here. A bare assertion of prejudice cannot, without more, outweigh sworn and u
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1. This Petition asks a question that often comes up in numerous constitutional petitions. What should Courts do when citizens claim their fundamental rights were violated long ago, under the repealed Constitution that is no longer in force, but they bring the case now under the more stronger and elaborate protections of the 2010 Constitution?
2. The Petitioners herein allege to have been unlawfully arrested, detained and tortured in the year 1995 under the old Constitution. Back then, the machinery for enforcing fundamental rights was narrower and more onerous than it is today. Years later, under the 2010 Constitution, which has stronger and more accessible protections, they have come to court saying: “My rights were violated back then, and I want justice now.” This Court has to decide whether today's stronger machinery may be used to redress yesterday's wrongs, and whether the passage of time bars that redress.
3. The Petitioners are Kenyan citizens and persons entitled to the enjoyment of the fundamental rights and freedoms of an individual as enshrined in the Constitution of Kenya, 2010. They allege that on diverse dates in the year 1995, officers of the Kenya Police, operating as Special Branch Police Officers attached to stations within this Court's jurisdiction, unlawfully arrested them, detained them without trial and, while they were in custody, subjected them to assault, inhuman and degrading treatment, all without lawful justification and without according them the protections then guaranteed under Chapter V of the repealed Constitution.
4. The petitioners contend that these acts amount, in substance, to violations of rights now protected under Articles 25(a), 25(d), 28, 29(f), 49 and 51 of the 2010 Constitution, and seek declarations to that effect, together with an award of damages, costs and interest.
5. This Petition was filed in this Court on 1st August, 2025, some thirty years after the impugned events of 1995, and some fifteen years after the promulgation of the Constitution on 27th August 2010.
6. The Respondent, the Hon. Attorney General, sued on behalf of the Government of Kenya and its agents, has opposed the Petition by way of Grounds of Opposition dated 1st October 2025. No replying affidavit was filed; the Respondent elected to stand on the Grounds of Opposition alone, and the matter proceeded to determination on the pleadings and the parties' rival submissions.
7. The 1st to 4th Petitioners' case, as pleaded and sworn to in their respective supporting affidavits, is that they were each arrested by Kenya Police Officers in the year 1995 on suspicion of being members of the “February Eighteen Revolutionary Army” (FERA). They were never informed of the reason for their arrest. They were held in police custody beyond the period then permitted by section 72 of the repealed Constitution, for periods of 8 weeks, 3 days, 1 year and 2 weeks respectively. They allege to have been assaulted while in custody in a manner they characterise as torture or, in the alternative, inhuman and degrading treatment contrary to section 74 of the repealed Constitution.
8. The 5th and 6th Petitioners, on the other hand, plead that their respective parents were among the 1st to 4th Petitioners arrested in 1995. They were aged 5 and 3 years respectively at the time, and were left without parental care upon the arrest and prolonged, incommunicado detention of their parents. To date they say they have never recovered the paternal presence, love and care of which they were deprived as children, and that they suffered as minors on account of that deprivation.
9. The petitioners all urge that whereas the Respondents Special Branch Police officers were entitled to arrest the suspects on suspicion of being members of the outlawed “FERA” group, they had no lawful, legal or Statutory power to torture and to keep the 6 petitioners in their custody for more than 24 hours and further deny them communication with members of their family, friends and advocates.
10. The Petitioners aver that they lacked the awareness, and the means, to institute proceedings of this kind at the material time. They further urge that the political and institutional environment of the 1990s, and the low public confidence in the judicial process of that era, derailed their efforts to pursue redress. It was only after the promulgation of the 2010 Constitution, which for the first time gave meaningful and practical content to their right of access to this Court under Article 22 and to an effective remedy under Article 23, that pursuing this claim became a realistic prospect.
11. The petitioners pray for:
(a) a declaration that their Fundamental Rights and Freedoms from torture were contravened and grossly violated under sections 72 and 74 of the repealed Constitution, and under Articles 25(a), 28, 29(f) and 49 of the Constitution;
(b) a declaration that they are entitled to the payment of damages and compensation,
(c) general and exemplary damages; (c) costs; and
(d) such further or other relief as the Court may consider just.
12. The Respondent's Grounds of Opposition, dated 1st October 2025, may fairly be summarised as follows:
(a) the inordinate delay in instituting the suit has deprived the Respondent of a fair opportunity to defend the claim since most of the police officers alleged to have effected the arrest having since retired or died;
(b) imposing liability in circumstances where witnesses and official records are no longer available offends the Respondent's own right to a fair hearing under Article 50;
(c) the Petition was filed some fifteen years after the promulgation of the Constitution 2010 without explanation for that delay;
(d) the Petitioner's silence for that period amounts to acquiescence and a waiver of the rights now asserted;
(e) the Constitution cannot be applied retrospectively to conduct said to have occurred in 1995, prior to its promulgation;
(f) a mere allegation that fundamental rights have been contravened does not entitle a petitioner to a remedy absent proof of real, actual and evident contravention;
(g) the Petition fails to meet the constitutional standard of precision set out in Anarita Karimi Njeru v Republic (1979) KLR 154, in that it broadly invokes Articles 22, 23, 25(a), 25(d) and 29(f) of the Constitution and section 74 of the repealed Constitution without demonstrating how those provisions were contravened;
(h) the allegations are misconceived, unsubstantiated and bad in law;
(i) the Petition is, in its entirety, wild, alarming, fictitious, vexatious and frivolous and warrants dismissal; and
(j) the Petitioner has not satisfied the requirements set out in the authorities governing the grant of the orders sought.
13. Arising from the pleadings and the rival positions of the parties, the following issues fall for determination:
(a) Whether the Petition meets the threshold of specificity and precision demanded of constitutional petitions under the Anarita Karimi Njeru doctrine;
(b) Whether, and to what extent, the Constitution of Kenya, 2010 may be invoked in respect of conduct alleged to have occurred in 1995, prior to its promulgation;
(c) Whether the Petition is barred by inordinate and unexplained delay, and if so with what consequence;
(d) Whether the Petitioners' fundamental rights and freedoms were violated by the Respondent's agents; and
(e) What relief, if any, is available to the Petitioners.
14. This Court's jurisdiction to hear and determine this Petition is not in dispute. Article 165(3)(b) of the Constitution confers upon the High Court jurisdiction to determine questions concerning the denial, violation, infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.
15. Article 22 confers standing on every person to institute proceedings claiming that a right or fundamental freedom has been denied, violated, infringed, or is threatened. Article 23(3) on the other hand equips the Court with a wide, non-exhaustive remedial jurisdiction, including declarations of rights and an award of compensation. Nothing in the Grounds of Opposition disputes this Court's jurisdiction as such; the objections go instead to the sufficiency of the pleadings, the temporal reach of the provisions invoked, and the effect of delay.
16. The starting point is Anarita Karimi Njeru v Republic [1979] KLR 154, itself decided on an application brought under section 84 of the repealed Constitution. The Court there held that:
“……a person seeking constitutional redress must: "set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed."
17. That formulation has proved remarkably durable, surviving the transition from the repealed Constitution to the Constitution of Kenya, 2010, and has been repeatedly applied by this Court, the Court of Appeal and the Supreme Court in the intervening decades.
18. The Court of Appeal, in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, Civil Appeal No. 290 of 2012; [2013] eKLR, cautioned against reading the Anarita Karimi Njeru principle as a demand for exactitude. It opined that the requirement of precision exists so that the real issues in a petition can be properly defined, enabling the Court to apply its mind to them and the respondent to know the case it must meet, not to erect a technical barrier that defeats otherwise genuine claims on account of inelegant drafting.
19. The Supreme Court endorsed the same principle in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others, Petitions 14, 14A, 14B & 14C of 2014; [2014] eKLR, holding that a party invoking Article 22(1) must show the right said to be infringed and the basis of the grievance, there being a necessary link between the aggrieved party, the provision said to be contravened, and the manner of contravention.
20. Ground 10 of the Grounds of Opposition invokes this doctrine, complaining that the Petition broadly cites Articles 22, 23, 25(a), 25(d) and 29(f) of the Constitution and section 74 of the repealed Constitution without demonstrating how those provisions were contravened.
21. Had the Petitioners done no more than recite that list of provisions, the objection would be well founded, and this Court would have been bound, on the authority of Anarita Karimi Njeru (supra).
22. The Petition before this Court, however, does more than recite a list of Articles. It identifies an approximate date, a specific category of state agent (police officers attached to an identified station), a described sequence of events (arrest without being informed of the reason, prolonged custody, and physical assault while detained), and the provisions said to correspond to each element of that narrative. That is sufficient, applying Mumo Matemu, to satisfy the Anarita Karimi Njeru threshold at the level of pleading.
23. Whether the Petitioner can substantiate those averments by evidence is a distinct question, addressed later in this judgement and is not to be conflated with the separate question of whether the pleading itself is precise enough to be justiciable.
24. Fundamental rights and freedoms prior to the Constitution of Kenya, 2010. Ground (e) turns on the relationship between the repealed Constitution and the Constitution of Kenya, 2010. It is accordingly necessary to examine, in some depth, the protection Kenyan constitutional law afforded to the rights the Petitioners invoke, as they stood in 1995.
25. Chapter V of the repealed Constitution — sections 70 to 86 was headed "Protection of Fundamental Rights and Freedoms of the Individual." Section 70 set out, in a single omnibus provision, the catalogue of protected rights and freedoms, expressed as being "subject to respect for the rights and freedoms of others and for the public interest."
26. The sections that followed particularised specific protections. Section 71 (right to life), section 72 (protection of the right to personal liberty), section 73 (protection from slavery and forced labour), section 74 (protection from inhuman treatment), section 75 (protection from deprivation of property), section 76 (protection against arbitrary search or entry), section 77 (provisions to secure protection of the law), section 78 (freedom of conscience), section 79 (freedom of expression), section 80 (freedom of assembly and association), section 81 (freedom of movement), and section 82 (protection from discrimination). Section 84 supplied the enforcement mechanism, and sections 83 and 85 addressed derogation and the preservation of public security.
27. The two provisions material to this Petition existed, in substance, at the time of the events complained of. Section 72 protected the right to personal liberty, prohibiting arbitrary arrest or detention and requiring a person arrested to be informed as soon as reasonably practicable of the reasons for the arrest and to be brought before a court without undue delay.
28. Section 74(1) provided, in terms materially identical to those later carried into Article 25(a) and Article 29 of the Constitution, that "no person shall be subjected to torture or to inhuman or degrading punishment or other treatment."
29. It was precisely section 74(1) that the Supreme Court applied, nearly thirty years after the fact, in Wamwere & 5 others v Attorney General, Petition 26, 34 & 35 of 2019 (Consolidated); [2023] KESC 3 (KLR), to vindicate the rights of persons brutalised by police and General Service Unit officers during the 1992 "Freedom Corner" protests.
30. Section 77 of the repealed Constitution was the analogue of today's Article 50, guaranteeing a fair hearing, including the presumption of innocence and adequate time and facilities to prepare a defence for a person charged with a criminal offence. It follows that the substantive core of the rights the Petitioner invokes, freedom from arbitrary arrest and detention, and freedom from torture or inhuman treatment was already fully justiciable in Kenyan law in 1995. The 2010 Constitution did not invent these protections, it re-enacted, consolidated and in places strengthened them.
31. What did materially change in 2010 was not the existence of these core rights but the architecture surrounding their enforcement. Three differences are of particular relevance here. First, standing; enforcement under section 84 of the repealed Constitution was confined to a person alleging that a protective provision "has been, is being or is likely to be contravened in relation to him", a personal-standing model considerably narrower than Article 22(2) of the Constitution, which expressly extends standing to persons acting in the public interest, on behalf of another who cannot act in their own name, or as a member of, or in the interest of, a group or class of persons.
32. Second, procedure; rules made pursuant to section 84 commonly required a bench of three judges to hear a petition alleging contravention of Chapter V, save where a single judge certified the application frivolous or vexatious. A structural constraint widely regarded, both in academic commentary and in subsequent judicial reflection, as having contributed to the slow and uneven vindication of Chapter V rights during the currency of the repealed Constitution. No equivalent constraint attaches to proceedings under Article 165(3)(b) of the Constitution.
33. Third, remedy and judicial temperament; the derogation clause in section 83 of the repealed Constitution was broadly framed, and Kenyan courts, particularly through the one-party period and its immediate aftermath, are generally understood to have applied Chapter V restrictively.
34. This Court is mindful of the observation made in the context of Chapter V litigation, that fundamental rights and freedoms "had suffered erosion during the one party system" and required a correspondingly generous, purposive approach to be given practical effect (see the discussion in Nakusa v Tororei & 2 Others (No. 2), Nairobi HCEP No. 4 of 2003 [2008] 2 KLR (EP) 565).
35. The significance of this history for the present Petition is twofold. On one hand, it confirms that the Petitioner's underlying grievance was not, in 1995, a legal vacuum. Sections 72 and 74 of the repealed Constitution supplied a substantive right and, through section 84, a route imperfect and procedurally more onerous than today's to a remedy.
36. On the other hand, it explains why claims of this vintage so frequently reach this Court only after 2010. The practical and psychological barriers to enforcement under the repealed constitutional order were real, and their removal by the Constitution of Kenya, 2010 forms part of the factual matrix against which delay must be assessed.
37. It also disposes of Ground (9) of the Grounds of Opposition, that a mere allegation of contravention does not, without more, entitle a petitioner to a remedy. That ground correctly states an unremarkable evidentiary principle, applicable in equal measure under both constitutional orders, but does not by itself resolve any of the threshold issues raised in this Petition; it goes to proof at trial, not to the viability of the claim as pleaded.
38. This Court accordingly finds that the substantive rights the Petitioner invokes existed, in materially equivalent form, under the repealed Constitution at the time of the alleged 1995 events.
39. I shall now turn to the distinct question of whether, and how, those rights may now be enforced through the constitutional and remedial machinery introduced in 2010.
40. The governing authority on this question is the Supreme Court's decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. The Grounds of Opposition attribute a passage on the progressive, non-retrospective character of enacted laws to a Supreme Court motion; whatever the precise provenance of that passage, the applicable principle is authoritatively and more precisely stated in the Macharia decision, and it is that decision this Court applies.
41. In Macharia case (supra), the Supreme Court held that a Constitution is not necessarily subject to the same rule against retroactivity as ordinary legislation, since a Constitution "looks forward and backward" in re-engineering the social and political order, and may embody retrospective provisions or provisions with retrospective ingredients.
42. The Court nonetheless cautioned that, in determining whether a particular provision applies retrospectively, due regard must be paid to its language, and that such caution is heightened where retrospective application would divest a person of rights already vested before the Constitution's commencement. Where the language of a specific provision contains, in the Court's own phrase, "not even a whiff of retrospectivity," that provision cannot be applied to pre-promulgation conduct.
43. This qualified test has since been applied by the Supreme Court itself in Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties), SC Petition No. 37 of 2014; [2019] eKLR, and was considered by the Court of Appeal in the Article 47 fair-administrative-action litigation reported at Petition 14 of 2017 (Kenya Law), where it was held that Article 47, which introduced a materially new statutory-cum-constitutional guarantee with no direct repealed-Constitution analogue, could not be read backward to conduct pre-dating its enactment.
44. Ground 8 of the Grounds of Opposition, is framed as a blanket proposition that "the Constitution cannot be applied retrospectively," and states the Macharia principle imprecisely. The correct inquiry is provision-specific, not instrument-wide: the question is not whether the Constitution of Kenya, 2010 as an undifferentiated whole reaches back to 1995, but whether the particular provision on which the Petitioner's substantive claim rests carries, in Macharia's language, any "whiff of retrospectivity”.
45. More precisely in a case such as this, the question is whether the right relied upon already existed in substantially equivalent form under the law in force at the time of the impugned conduct, such that the 2010 Constitution's role is confined to supplying the forum and the remedy rather than the underlying right.
46. Applying that distinction, the Petitioner's claim, properly analysed is rooted in sections 72 and 74 of the repealed Constitution, both of which were in force and applicable to them in 1995. The petitioners are not asking this Court to apply a genuinely new substantive right retrospectively, they are asking the Court to use the current constitutional and procedural machinery, i.e Articles 22, 23 and 165(3)(b) of the Constitution to enforce a right that had already accrued to them under the law then in force.
47. That is precisely the approach the Supreme Court itself took in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), where the Court declared that the appellants' rights “under section 74(1) of the repealed Constitution” had been violated by events of 1992, and awarded damages under Article 23(3) of the Constitution of Kenya, 2010.
48. It is likewise the approach taken by this Court, on materially indistinguishable facts arising from the same FERA-related events, in Taiga Job Wanyanja & 16 others v Attorney General, Bungoma HC Petition No. 5 of 2017 (Consolidated); [2019] eKLR, and by the High Court at Nairobi in Eliud Wefwafwa Luucho & 4 others v Attorney General, Constitutional Petition No. 121 of 2016 (Consolidated); [2017] eKLR, both of which applied 2010-era procedure and remedy to pre-2010 substantive violations without giving retrospective effect to any new right.
49. The position would be materially different had the Petitioner sought to found his claim on a provision with no repealed-Constitution analogue for example, a claim resting solely on Article 47's fair administrative action guarantee, or on an economic and social right recognised for the first time under Article 43 of the Constitution. No such claim is made here. I find that even the derivative claim of the 5th and 6th Petitioners rests, as explained below, on the same underlying violation of sections 72 and 74 of the repealed Constitution visited upon their parents.
50. It follows that Ground (e) is dismissed to the extent that it is deployed to suggest that the Petitioner's claim resting on rights that pre-existed the 2010 Constitution is for that reason alone incapable of being ventilated in these proceedings.
51. It is well settled that no period of limitation under the Limitation of Actions Act applies to a claim for the enforcement of fundamental rights and freedoms (see, among others, Dominic Arony Amolo v Attorney General, Nairobi HC Misc. Civil Application No. 494 of 2003, and the discussion in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR) and Kinyanjui & 3 others v Attorney General, Civil Appeal 103 & 104 of 2018 (Consolidated); [2024] KECA 1946 (KLR)).
52. That is not, however, the end of the matter, for delay may still weigh against a petitioner where it is inordinate and unexplained. This Court has had the considerable benefit of two decisions of this Court arising from precisely the same historical episode as the one pleaded in this Petition, namely the wave of arrests, detentions and torture of persons suspected of association with the “February Eighteen Revolutionary Army” (FERA) in the greater Bungoma region in and around 1995.
53. In Taiga Job Wanyanja & 16 others v Attorney General, Bungoma HC Petition No. 5 of 2017 (Consolidated); [2019] eKLR, Riechi J was confronted with seventeen consolidated petitions brought by FERA torture victims some twenty-five years after the events complained of, and after the Respondent had raised, in materially identical terms, the objection that the petitions were time-barred. The learned Judge held:
“...where there is allegations of violation or fundamental rights by the state or its organs, a petition filed premised on the said violation cannot be limited by time unless it is demonstrated that the Petitioner slept on his rights for such a long time that the institutions of the Petition is an afterthought or amounts to an abuse of the court process. The court will be guided by the nature of the violations, circumstances but always bear in mind that state machinery can be used to intimidate or obstruct the petitioners to cover its misdeeds during that regime.”
54. Riechi J went on to cite, with approval, the following passage from Lenaola J (as he then was) in Eliud Wefwafwa Luucho & 4 others v Attorney General, Constitutional Petition No. 121 of 2016 (Consolidated); [2017] eKLR, a case concerning the same category of FERA-related violations pleaded by petitioners arrested between 1982 and 1995:
“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 are no limitation with respect to constitutional petitions alleging violation of fundamental rights... the state cannot shut its eyes on its past failings nor can the court ignore the dictates of transitional justice... My understanding of the jurisprudence on the issue of limitation is that courts will be reluctant to shut out a litigant on account of limitation of time unless there are obvious reasons to do so. In considering such delays, the court cannot avoid taking judicial notice of the immense difficulties which prevailed at the period of the alleged violations making it impossible for aggrieved persons to file cases of this nature against the government. In fact it is the promulgation of the constitution of Kenya 2010 that opened the doors of justice thereby making it possible for aggrieved persons to institute cases of this nature.”
55. Both Wanyanja and Luucho excused delays of comparable, and in respect of some of the consolidated Luucho petitioners considerably greater, length than the delay in this case, without demanding the kind of independent, contemporaneous public corroboration that the Supreme Court later required in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR).
56. Neither Riechi J nor Lenaola J treated the absence of media prominence or a documented mass protest as fatal; both proceeded on the footing that the political and institutional climate of the period between 1982 and the promulgation of the 2010 Constitution was itself a sufficient and general explanation for delay in cases of this character, arising as they did from a co-ordinated pattern of state conduct expressly designed, on the petitioners' unrebutted evidence in both cases, to intimidate victims into silence.
57. The test is fact-sensitive rather than mechanical. As the Supreme Court put it in Wamwere:
"whether a claim for violation of rights had been instituted within a reasonable time was to be determined based on the peculiar circumstances of each case."
58. In Wamwere itself, the Supreme Court excused a delay of some twenty years, setting aside concurrent findings of the High Court and Court of Appeal that the claim was time-barred. It did so, however, on a clearly articulated and evidentially grounded basis: the underlying events of the 1992 "Freedom Corner" protests were of a well-documented, high-profile, unmistakably public character; and the claims were treated by the Court as bearing the hallmarks of transitional justice, being claims against a departed authoritarian dispensation, brought once the political and institutional conditions for their ventilation had changed; and the appellants' presence at, and participation in, the specific historic events was not seriously in dispute.
59. This Court respectfully adopts and applies that reasoning to the present Petition, which arises from the same historical episode, the same geographical area, and materially the same pattern of arrest, incommunicado detention and interrogation concerning the same alleged FERA movement as was before the Court in both Wanyanja and Luucho.
60. The Petitioners' explanation, that they lacked awareness of, and the practical means to invoke, their constitutional rights during the currency of the repealed Constitution, and that it was only the promulgation of the 2010 Constitution that gave meaningful and practical content to their right of access to this Court, is not a bare or generic assertion; it is the same explanation this Court has already twice accepted in respect of the identical historical episode, and this Court sees no principled basis to depart from that consistent line of authority on the facts of this case.
61. Grounds (c) and (d) of the Grounds of Opposition are, for these reasons, not made out. This Court declines to treat the Petitioners' silence as either acquiescence or waiver; a fundamental right is not ordinarily capable of being waived by mere inaction, and in any event the explanation tendered is, on the authority of Wanyanja and Luucho, an adequate one.
62. As to the prejudice pleaded in Grounds (a) and (b), this Court notes that the Respondent has filed no replying affidavit and has placed no evidence before the Court, whether documentary or otherwise, to substantiate the assertion that the officers concerned have retired or died, or that relevant records are unavailable.
63. In both Wanyanja and Luucho, the Respondent likewise filed no affidavit evidence, and in both cases this Court declined to allow an un-particularised assertion of prejudice, made only in submissions or grounds of opposition, to defeat petitions supported by sworn, uncontroverted evidence of torture and unlawful detention by state agents. This Court adopts the same approach here. A bare assertion of prejudice cannot, without more, outweigh sworn and u
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