' [1] The brief background of this Petition is that all the petitioners were serving officers of the Kenya Air Force at the time of the attempted coup of 1st August 1982. They were arrested by the Kenya Army on suspicion of plotting and/or participating in the failed coup on account of their being officers of the Kenya Air Force. They averred tht, in the cause of and immediately after their arrest, they were subjected to untold brutalities, cruel, inhuman and degrading treatment by soldiers of the Kenya Army by being stripped naked in public, forced to walk on their knees on concrete floors, whipped, kicked and bludgeoned all over their bodies, taunted and insulted as they were escorted to custody in open trucks in the full view of the public.
[2] The petitioners further averred that, after their arrest, they were detained incommunicado in various military, police and prison custody where the wanton brutalities, cruel, inhuman and degrading treatment continued including being locked up naked intermittently in solitary confinement in tiny, pitch dark, waterlogged cells. They added that they were deprived of sleep and rest, denied medical attention for pain and wounds inflicted on them while in custody; food, drinking water and toilet facilities while being interrogated and coerced to confess plotting and participating in the attempted coup and its attendant crimes.
[3] The petitioners therefore averred that they were held incommunicado for periods of between 64 and 222 days from 1st August 1982 and 15th March 1983, before they were arraigned before the Court Martial and coerced or cajoled to plead guilty. They were consequently convicted and sentenced or simply released without charge. Thereafter, they were all dismissed from the Armed Forces on the ground of redundancy without being accorded a hearing.
[4] It was in the light of the foregoing that the petitioners filed this Petition seeking the following reliefs:
[a] A declaration that their brutal arrest, cruel, inhuman, degrading and extreme treatment inflicted on them upon being taken into custody; the cruelties, violence, brutalities, deprivation of basic necessities of life and the extreme, inhuman and degrading prison conditions that the petitioners were subjected to incommunicado pre-trial detention constituted breaches of their fundamental rights and freedoms to inherent human dignity, equal protection and benefit of the law and prohibition against torture, cruel, inhuman and/or degrading treatment or punishment, contrary to Sections 70(a), 74(1) and 77 of the former Constitution (now Articles 27(1), 28 and 29(c) and (d) of the Constitution of Kenya, 2010) and Articles 4(2) and 7 of the International Covenant on Civil and Political Rights (ICCPR).
[b] A declaration that the period of between 64 and 222 days that the respective petitioners were detained in pre-trial incommunicado detention from 1st August 1982 to 15th March 1983 when they were either arraigned before the Court Martial or released without charge constituted periods of arbitrary, unlawful and illegal detention in violation of their fundamental rights to inherent human dignity, equal protection and benefit of the law, personal liberty and fundamental freedom from servitude, torture, cruel, inhuman and/or degrading treatment of punishment contrary to Sections 70(a), 72(3), 73(1), 74(1) and 77 of the repealed Constitution (now Articles 27(1), 28, 29(c) and (d), 30(1), 49(1(f) and 50(2) of the Constitution of Kenya, 2010) and Articles 4(2) and 7 of the ICCPR.
[c] A declaration that the dismissal of the 1st and 2nd petitioners from service of the Armed Forces without having been arraigned before any court of law charged with any offence and without a hearing leading to the dismissal was a violation of their fundamental rights to life and to a livelihood guaranteed by Section 71 of the former Constitution.
[d] General, exemplary, aggravated and/or punitive damages consequential to the declarations of violations of fundamental rights and freedoms of the petitioners in prayers [a] to [c] above as may be assessed by the Court.
[e] Costs of the Petition.
[f] Interest on all monetary awards.
[5] The Petition was supported by the petitioners’ respective affidavits filed therewith. In the first Supporting Affidavit sworn by the 1st petitioner, Michael Camillus Saddy Kipunde, sworn on 1st November 2019, he averred that he was enlisted in the Kenya Air Force on 2nd July 1974 vide Service No. 021778; and that after successful completion of his basic military training at the Armed Forces Training College, Lanet, he was posted to Ground Air Defence Unit (GADU) at Embakasi as a gunner.
[6] The 1st petitioner further deposed that he returned from his annual leave on 31st July 1982; and that while asleep, he heard gunshots in the wee hours of the morning. At daybreak on 1st August 1982, he decided to report to the nearest KAF Base, which was KAF Eastleigh Base. He found his fellow soldiers dressed in full uniform and armed. He was shocked to learn that the Government had been overthrown by the military and was ordered to go to the armoury and arm himself for duty.
[7] The 1st petitioner also averred that later at 1.00 p.m. while in the mess at KAF Eastleigh, he heard a news item on the radio that the attempted coup was a KAF affair and that it had since be crushed by loyal Kenya Army servicemen and the Government returned to civilians under President Daniel Arap Moi; and that the KAF Headquarters was about to be attacked by the Army. Fearing for his life, he quickly returned his firearm and ammunition to the armoury and went into hiding.
[8] The 1st petitioner explained that, while in hiding, he heard announcements over the radio ordering all KAF officers to surrender and report to the nearest Army Base or Police Station. He averred that, on the 5th August 1982, he surrendered himself to the Kenya Army at the Department of Defence (DOD), Nairobi. That marked the beginning of his ordeal which he explained in detail at paragraphs 8 to 19, the synopsis of which is that he was subjected to torture and inhumane treatment at different detention centres for intensive and relentless interrogation with a view of coercing him to confess to his involvement in the planning and participation in the attempted coup.
[9] The 1st petitioner stated further that ultimately he agreed to sign a pre-recorded statement whose contents he was not allowed to read, He added that he did so out of fear that he would die from the festering wounds on his body, pneumonia, numbness and starvation if he returned to the cold, solitary and waterlogged cell he was being held in. Ultimately, on the 15th March 1983 after being held incommunicado for 222 days, he was released after having been informed that he had been dismissed from service. He mentioned that he was neither given a hearing before his dismissal nor paid any dues, including his salary for the 7 months and 4 days that he was unlawfully held in detention.
[10] At paragraphs 26 to 35 of his Supporting Affidavit, the 1st petitioner explained the delay in filing this Petition and prayed that the same be excused. He also provided the litigation history of this Petition and adverted to a previous Petition and a Claim before the Employment and Labour Relations Court, Mombasa, which were later withdrawn when they filed the instant Petition. The 1st petitioner attached copies of several documents to his affidavit to back up his averments. They include:
[a] Certificate of Service in the Armed Forces;
[b] Certificate of Discharge;
[c] A Notice of Motion dated 13th June 2013 filed in Mombasa High Court Constitutional Petition No. 26 of 2013 along with its Supporting Affidavit;
[d] A copy of a Notice of Motion dated 15th October 2018 along with its Supporting Affidavit, filed in Mombasa ELRC Cause No. 5 of 2016; and,
[e] An Order issued on 18th December 2018 for withdrawal of the ELRC matter.
[11] The Supporting Affidavits sworn by the 2nd to 9th petitioners were, more or less, of the same tenor and effect, save for the necessary clarifications as to their dates of enlistment, place of deployment, date of arrest, the duration of their incarceration and date of dismissal from service. It is also notable that some of the petitioners were arraigned before the Court Martial for various charges and imprisoned for disparate terms for their respective charges.
[12] The respondent denied the petitioners’ allegations vide the Replying Affidavit sworn on 20th February 2020 by Major Frankline Oyese Omuse. He averred that he is a Staff Officer II Records. The respondent thereby deposed that the delay of 37 years in filing this Petition is inordinate and had not been explained by the petitioners. It was therefore the contention of the respondent that the petitioners are guilty of laches and that the delay is prejudicial. The respondent deposed that the personal records and the proceedings of the Court Martial were disposed of pursuant to Section 114 of the Armed Forces Act (now repealed) and Rule 97 of the Armed Forces Rules of Procedure.
[13] The respondent denied that the petitioners were arrested in August 1982, and asserted that if they were arrested at all it was a consequence of their involvement in the 1982 failed coup which they admitted. The respondent averred that the Ministry of Defence cannot account or bear responsibility or liability for the alleged tribulations that were allegedly experienced by the petitioners. He added that, in any case, the dismissal of the petitioners from service was lawful and provided for in the Armed Forces Act (now repealed).
[14] At paragraph 32, the respondent averred that, curiously all the petitioners’ Supporting Affidavit are styled and worded similarly. He posited that it is an indication that the petitioners had been coached or the affidavits were crafted so as to produce specific design or results. The respondent also pointed out that the petitioners filed Constitutional Petition No. 26 of 2013 in which they conceded that this Court does not have jurisdiction to hear and determine the matter; and therefore they are estopped from asserting that the Court has jurisdiction to determine this Petition.
[15] The respondent also deposed, at paragraph 37 of the Replying Affidavit, that the Court does not have jurisdiction to hear and determine the Petition owing to the fact that the petitioners had an opportunity to appeal against the decision of the Court Martial to the High Court under Section 115(1)(a) of the Armed Forces Act. The respondent added that this Petition is an attempt to re-open cases that have already been finally heard and determined by a court of competent jurisdiction. The respondent annexed to his affidavit copies of extracts of the Report of the Committee appointed to review Courts Martial findings and sentences in the trials of the ex-Kenya Air Force personnel to buttress his averments.
[16] The respondent quoted Section 86(4) of the retired Constitution to support his averment that the Constitution was specific on how the fundamental rights and freedoms would apply to members of the Armed Forces by making an exception under Section 86(4), which provided that:
“In relation to a person who is a member of a disciplined force raised under and law in force in Kenya, nothing contained in or done under the authority of the disciplinary law of that force shall be held inconsistent with or in contravention of any of the provisions of this chapter other than Sections 71, 73 and 74.”
[17] The respondent pointed out that since the Petition was brought under Sections 70, 72 and 77, it lacks merit and ought to be dismissed with costs in the interest of justice.
[18] The petitioners filed Further Affidavits in response to the generic averments of the respondent which they considered incorrect. For instance, the 1st petitioner denied that he was arraigned before the Court Martial or any court of law; and therefore the respondent’s averment that he was dismissed after being found guilty of an offence was not true. The other petitioners likewise pointed out the general assertions made by the respondent and pointed out that for some of them they appealed and had their sentences reduced. They reiterated their averments as pertains to their peculiar circumstances.
[19] The Petition was disposed of by way of viva voce evidence. All the petitioners attended court as witnesses, save for the 1st petitioner who was ailing and ultimately died. His case was thereafter withdrawn at the instance of counsel for the petitioners. The surviving petitioners adopted their averments in their respective affidavits and were thereafter cross-examined by counsel for the respondent.
[20] The respondent relied on the evidence of Lt. Leonard Omuse, a Records Officer with the Kenya Defence Forces (KDF). He testified that he joined the KDF who likewise adopted his averments as set out in the respondent’s Replying Affidavit. He reiterated that the records pertaining to the arrest, trial, conviction and dismissal of the petitioners had been disposed of by way of destruction. He then fielded questions in cross-examination and conceded, inter alia, that he was not in service when the incidents complained of took place and did not make any effort to ascertain the truth or otherwise of the petitioners’ allegations of torture.
[21] The parties were then invited to file their closing submissions. The petitioners relied on their written submissions dated 22nd May 2024. They provided a summary of their respective cases as well as a synopsis of the respondent’s response and proposed the following five issues for determination:
[a] Whether this Court has jurisdiction to hear and determine Petition;
[b] Whether the Petition is time-barred;
[c] Whether the delay in filing the Petition prejudiced the respondent;
[d] Whether the Petition is tainted by forum-shopping; and
[e] Whether the petitioners have proved their claims and whether they are entitled to the prayers sought.
[22] On whether the Court has jurisdiction to determine the Petition, the petitioners submitted that the issue was first raised on the 30th January 2020, whereupon directions were given for the filing of written submissions on the issue. The Court (Hon. Mativo, J. as he then was) was to initially deliver a ruling on the preliminary issue of jurisdiction, but later ordered that the issue of jurisdiction be determined in the judgment after the hearing of the Petition. Accordingly, the petitioners opted to rely on their written submissions dated 17th November 2020 as well as their List and Bundle of Authorities filed therewith.
[23] I have perused the said submissions and the authorities relied on by the petitioners. They refuted the respondent’s assertion that this Petition is in fact an appeal against their conviction and sentence by the Court Martial, disguised as a constitutional petition. They were categorical that by filing this Petition, they only see enforcement of their constitutional rights through declaratory orders and damages consequential to the declarations. They added that the Court Martial had no jurisdiction to determine the matters raised in the Petition so as to give rise to an appeal from the decision of the Court Martial.
[24] On whether the Petition herein is a labour claim, the petitioners submitted that, the respondent misrepresented the facts at paragraphs 35 and 36 of the Replying Affidavit as only one petitioner out of twenty in Petition No. 26 of 2013, who is not even a party to this Petition had unilaterally applied for that Petition to be transferred to ELRC. They explained that the order for transfer was made ex parte and therefore the petitioners herein applied to withdraw their respective cases before the ELRC confident that their matter is purely a constitutional matter; as opposed to a dispute between an employer and employee.
[25] The petitioners relied on Articles 23 and 165(3)(b) of the Constitution as well as Section 12 of the ELRC Act and submitted that all the reliefs sought by the petitioners fall within the jurisdiction of the High Court and not the ELRC. They relied on Philip Njoroge Kinyanjui & 66 others v Attorney General [2018] eKLR and Peter Tonny Wambua & 17 others v Attorney General [2017] eKLR in which the court held, in similar circumstances, that the cases fell within the jurisdiction of the High Court.
[26] On whether the Petition is time-barred, the petitioners relied on their earlier submissions and added that the legal position is that there is no limitation period for enforcement of constitutional rights and fundamental freedoms so long as the delay is explained. They relied on David Gitau Njau & others v Attorney General [2015] eKLR, Peter Mauki Kaijenja & 9 others v Attorney General v Chief of the Kenya Defence Forces & another [2019] eKLR, Zipporah Seroney & 5 others v Attorney General [2014] eKLR and Peter M. Kariuki v Attorney General [2014] eKLR for the proposition that the courts will not hesitate to hear or determine petitions concerning past violations of fundamental rights as an aspect of transitional justice in order to secure Kenya’s future free of gross human rights violations.
[27] In terms of inordinate delay, the petitioners relied on the decision of the Court of Appeal in Zinj Limited v Attorney General & 3 others [2019] eKLR. The Court of Appeal held that enforcement of fundamental rights is a matter of public policy; and therefore inordinate delay, estoppel, acquiescence or waiver cannot be a bar to enforcement. The petitioners also relied on Janmohamed & 2 others v Chelugui & 7 others [2022] KECA 720 (KLR), Wamwere & 5 others v Attorney General [2023] KESC 2 (KLR) among other authorities to underscore their assertion that they sufficiently explained the delay in their respective affidavits.
[28] On whether the delay in filing the Petition prejudiced the respondent, the petitioners reiterated their submissions on limitation and added that the allegations of prejudice at paragraphs 7 and 8 of the respondent’s Replying Affidavit were not proved. They relied on various provisions of the Public Archives and Documentation Service Act (PADSA) and submitted that, in the absence of lawful destruction of proceedings of the Court Martial, the alleged destruction of the records related to the attempted coup and the proceedings of the Court Martial, was done unlawfully and cannot be used as a defence in this case.
[29] The petitioners restated their litigation history to support their submission that they were not involved in the transfer of the earlier Petitions to the ELRC. They blamed the advocate for the petitioners in the ELRC Petitions for having withdrawn the Petitions from the High Court without consultation with the other parties; and added that miscalculation on the part of that counsel ought not to be visited on them.
[30] On whether the petitioners have proved their claims and whether they are entitled to the prayers sought, the petitioners submitted that their evidence was entirely uncontroverted by the respondent. They further submitted that the absence of medical reports does not detract from the fact that the petitioners were tortured and ill-treated. They relied on Harun Thungu Wakaba v Attorney General and the long line of cases in which that decision was followed for the proposition that torture is not only physical but includes mental pain or suffering entailed in prolonged detention in squalid conditions. Accordingly, the petitioners prayed that their Petition be allowed and the reliefs sought granted.
[31] On his part, the respondent proposed the following issues for determination vide his written submissions dated 29th May 2024:
[a] Whether the Court has jurisdiction to determine this Petition;
[b] Whether the petitioners’ claim is invalid by reason of inordinate delay;
[c] Whether the claim for torture, brutal, inhuman and degrading treatment was proved;
[d] Whether the petitioners have given proof on the alleged illegal detentions;
[e] Whether the petitioners have proved their claim for general and special damages.
[32] The respondent has raised an objection to the jurisdiction of this court on two fronts. Firstly, the respondent submitted the Petition herein is, in effect, an appeal in respect of the decision of the Court Martial. In the respondent’s view, this is an affront to Section 115 (1) (a) of the Armed Forces Act (Repealed). Secondly, it was the contention of the respondent that dispute before the court concerns the dismissal of the petitioners from employment, among other claims; and is therefore a matter falling within the jurisdiction of the Employment and Labour Relations Court. The respondent approached the issue from the
from the standpoint of Articles 162(2) and 165(5) of the Constitution that the Court is bereft of jurisdiction and added that this was the exact reason they filed Petition No. 26 of 2013 before the said court.
[33] It was further the submission of the respondent that the Petition is time-barred, having been filed 37 years after the alleged arrest, trial, conviction and subsequent dismissal of the petitioners from the Armed Forces. The respondent contended that the Petition is an afterthought since no adversity or compelling reason was cited on the petitioner’s part to justify the inordinate delay. Reliance was placed on the following authorities, among others, in which the petitions were struck out/dismissed on account of inordinate delay:
[a] Hezron Ndarera Onchiri v Attorney General [2020] eKLR in which the petitioner sought compensation for alleged torture and unlawful imprisonment arising from the events surrounding the failed coup of 1st August 1982.
[b] Joseph Miere Onoo v Attorney General [2015] eKLR where a petition alleging violations of various constitutional rights was dismissed on the ground of inordinate delay. The delay was for 27 years.
[c] Gilbert Guantai Mukindia v Attorney General [2019] in which a delay of 32 years in filing a petition in respect of arrest, alleged torture, and imprisonment of the petitioner was considered inordinate and the petition dismissed on that score.
[34] The respondent further submitted that the petitioners failed to discharge the burden of proving their allegations of torture, inhuman treatment or unlawful detention. He quoted from the cases of John Cheruiyot Rono v Attorney General, Petition No. 536 of 2015 and Monica Wangu Wamwere v Attorney General [2019] eKLR and submitted that the onus was on the petitioners to prove their allegations to the requisite standard. Accordingly, the respondent urged for the dismissal of the Petition with costs.
[35] Having given consideration to the averments set out in the Petition, the affidavits filed and the evidence adduced by the parties in respect thereof, as well as their written submissions and the authorities they relied on, the issues for consideration can be as follows:
[a] Whether this Court has jurisdiction to hear and determine Petition;
[b] Whether the Petition has been brought after inordinate delay;
[e] Whether the petitioners have proved their claims and whether they are entitled to the prayers sought.
A. On jurisdiction:
[36] The paramountcy of jurisdiction was aptly captured in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) as follows:
“...Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds that it is without jurisdiction…”
[37] It is trite that jurisdiction of a court must be explicit and therefore flows from the Constitution and legislation. The Supreme Court made this point in the case of Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) when it held:
“68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law…”
[38] The jurisdiction of the High Court is provided for in Article 165(3) of the Constitution as follows:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[39] Article 165(5) of the Constitution is explicit that:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
[40] Article 162(2) and (3) of the Constitution provides for Courts of equal status to the High Court. It provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[41] Pursuant to the above provisions, Parliament enacted the Employment and Labour Relations Act, which stipulates as follows in Section 12:
"The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations..."
[42] Accordingly, the Supreme Court had occasion to express itself in connection with the equal status superior courts in the case of Republic v Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment), as follows:
“51… it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this Court has reaffirmed its position that the jurisdiction of Courts is derived from the Constitution, or legislation (see In Rethe Matter of the Interim Independent Electoral Commission, at paras. 29 and 30; and Samuel Kamau Macharia and Another v. Kenya Commercial Bank and Two Others, Sup.Ct. Civil Application No. 2 of 2011 [para. 68]). In this instance, the jurisdiction of the specialized Courts is prescribed by Parliament, through the said enactment of legislation relating, respectively, to the ELC and the ELRC. Such legislation is to be interpreted in line with relevant constitutional provisions hence our position in Gatirau Peter Munya v. Dickson Mwenda Kithinji and Two Others, Sup. Ct. Civil Application No. 5 of 2014; [2014] eKLR, where we examined the constitutional provisions alongside legislative provisions on elections, and held [para. 77] that “ the Elections Act, and the Regulations thereunder, are normative derivatives of the principles embodied in Articles 81 and 86 of the Constitution, and that in interpreting them, a court of law cannot disengage from the Constitution.” In the instant case too, we take guidance from the Constitution, as we interpret it alongside the relevant statute law, pertaining to the specialized courts.
52.In addition to the above, we note that pursuant to article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relation
[...truncated]
[2] The petitioners further averred that, after their arrest, they were detained incommunicado in various military, police and prison custody where the wanton brutalities, cruel, inhuman and degrading treatment continued including being locked up naked intermittently in solitary confinement in tiny, pitch dark, waterlogged cells. They added that they were deprived of sleep and rest, denied medical attention for pain and wounds inflicted on them while in custody; food, drinking water and toilet facilities while being interrogated and coerced to confess plotting and participating in the attempted coup and its attendant crimes.
[3] The petitioners therefore averred that they were held incommunicado for periods of between 64 and 222 days from 1st August 1982 and 15th March 1983, before they were arraigned before the Court Martial and coerced or cajoled to plead guilty. They were consequently convicted and sentenced or simply released without charge. Thereafter, they were all dismissed from the Armed Forces on the ground of redundancy without being accorded a hearing.
[4] It was in the light of the foregoing that the petitioners filed this Petition seeking the following reliefs:
[a] A declaration that their brutal arrest, cruel, inhuman, degrading and extreme treatment inflicted on them upon being taken into custody; the cruelties, violence, brutalities, deprivation of basic necessities of life and the extreme, inhuman and degrading prison conditions that the petitioners were subjected to incommunicado pre-trial detention constituted breaches of their fundamental rights and freedoms to inherent human dignity, equal protection and benefit of the law and prohibition against torture, cruel, inhuman and/or degrading treatment or punishment, contrary to Sections 70(a), 74(1) and 77 of the former Constitution (now Articles 27(1), 28 and 29(c) and (d) of the Constitution of Kenya, 2010) and Articles 4(2) and 7 of the International Covenant on Civil and Political Rights (ICCPR).
[b] A declaration that the period of between 64 and 222 days that the respective petitioners were detained in pre-trial incommunicado detention from 1st August 1982 to 15th March 1983 when they were either arraigned before the Court Martial or released without charge constituted periods of arbitrary, unlawful and illegal detention in violation of their fundamental rights to inherent human dignity, equal protection and benefit of the law, personal liberty and fundamental freedom from servitude, torture, cruel, inhuman and/or degrading treatment of punishment contrary to Sections 70(a), 72(3), 73(1), 74(1) and 77 of the repealed Constitution (now Articles 27(1), 28, 29(c) and (d), 30(1), 49(1(f) and 50(2) of the Constitution of Kenya, 2010) and Articles 4(2) and 7 of the ICCPR.
[c] A declaration that the dismissal of the 1st and 2nd petitioners from service of the Armed Forces without having been arraigned before any court of law charged with any offence and without a hearing leading to the dismissal was a violation of their fundamental rights to life and to a livelihood guaranteed by Section 71 of the former Constitution.
[d] General, exemplary, aggravated and/or punitive damages consequential to the declarations of violations of fundamental rights and freedoms of the petitioners in prayers [a] to [c] above as may be assessed by the Court.
[e] Costs of the Petition.
[f] Interest on all monetary awards.
[5] The Petition was supported by the petitioners’ respective affidavits filed therewith. In the first Supporting Affidavit sworn by the 1st petitioner, Michael Camillus Saddy Kipunde, sworn on 1st November 2019, he averred that he was enlisted in the Kenya Air Force on 2nd July 1974 vide Service No. 021778; and that after successful completion of his basic military training at the Armed Forces Training College, Lanet, he was posted to Ground Air Defence Unit (GADU) at Embakasi as a gunner.
[6] The 1st petitioner further deposed that he returned from his annual leave on 31st July 1982; and that while asleep, he heard gunshots in the wee hours of the morning. At daybreak on 1st August 1982, he decided to report to the nearest KAF Base, which was KAF Eastleigh Base. He found his fellow soldiers dressed in full uniform and armed. He was shocked to learn that the Government had been overthrown by the military and was ordered to go to the armoury and arm himself for duty.
[7] The 1st petitioner also averred that later at 1.00 p.m. while in the mess at KAF Eastleigh, he heard a news item on the radio that the attempted coup was a KAF affair and that it had since be crushed by loyal Kenya Army servicemen and the Government returned to civilians under President Daniel Arap Moi; and that the KAF Headquarters was about to be attacked by the Army. Fearing for his life, he quickly returned his firearm and ammunition to the armoury and went into hiding.
[8] The 1st petitioner explained that, while in hiding, he heard announcements over the radio ordering all KAF officers to surrender and report to the nearest Army Base or Police Station. He averred that, on the 5th August 1982, he surrendered himself to the Kenya Army at the Department of Defence (DOD), Nairobi. That marked the beginning of his ordeal which he explained in detail at paragraphs 8 to 19, the synopsis of which is that he was subjected to torture and inhumane treatment at different detention centres for intensive and relentless interrogation with a view of coercing him to confess to his involvement in the planning and participation in the attempted coup.
[9] The 1st petitioner stated further that ultimately he agreed to sign a pre-recorded statement whose contents he was not allowed to read, He added that he did so out of fear that he would die from the festering wounds on his body, pneumonia, numbness and starvation if he returned to the cold, solitary and waterlogged cell he was being held in. Ultimately, on the 15th March 1983 after being held incommunicado for 222 days, he was released after having been informed that he had been dismissed from service. He mentioned that he was neither given a hearing before his dismissal nor paid any dues, including his salary for the 7 months and 4 days that he was unlawfully held in detention.
[10] At paragraphs 26 to 35 of his Supporting Affidavit, the 1st petitioner explained the delay in filing this Petition and prayed that the same be excused. He also provided the litigation history of this Petition and adverted to a previous Petition and a Claim before the Employment and Labour Relations Court, Mombasa, which were later withdrawn when they filed the instant Petition. The 1st petitioner attached copies of several documents to his affidavit to back up his averments. They include:
[a] Certificate of Service in the Armed Forces;
[b] Certificate of Discharge;
[c] A Notice of Motion dated 13th June 2013 filed in Mombasa High Court Constitutional Petition No. 26 of 2013 along with its Supporting Affidavit;
[d] A copy of a Notice of Motion dated 15th October 2018 along with its Supporting Affidavit, filed in Mombasa ELRC Cause No. 5 of 2016; and,
[e] An Order issued on 18th December 2018 for withdrawal of the ELRC matter.
[11] The Supporting Affidavits sworn by the 2nd to 9th petitioners were, more or less, of the same tenor and effect, save for the necessary clarifications as to their dates of enlistment, place of deployment, date of arrest, the duration of their incarceration and date of dismissal from service. It is also notable that some of the petitioners were arraigned before the Court Martial for various charges and imprisoned for disparate terms for their respective charges.
[12] The respondent denied the petitioners’ allegations vide the Replying Affidavit sworn on 20th February 2020 by Major Frankline Oyese Omuse. He averred that he is a Staff Officer II Records. The respondent thereby deposed that the delay of 37 years in filing this Petition is inordinate and had not been explained by the petitioners. It was therefore the contention of the respondent that the petitioners are guilty of laches and that the delay is prejudicial. The respondent deposed that the personal records and the proceedings of the Court Martial were disposed of pursuant to Section 114 of the Armed Forces Act (now repealed) and Rule 97 of the Armed Forces Rules of Procedure.
[13] The respondent denied that the petitioners were arrested in August 1982, and asserted that if they were arrested at all it was a consequence of their involvement in the 1982 failed coup which they admitted. The respondent averred that the Ministry of Defence cannot account or bear responsibility or liability for the alleged tribulations that were allegedly experienced by the petitioners. He added that, in any case, the dismissal of the petitioners from service was lawful and provided for in the Armed Forces Act (now repealed).
[14] At paragraph 32, the respondent averred that, curiously all the petitioners’ Supporting Affidavit are styled and worded similarly. He posited that it is an indication that the petitioners had been coached or the affidavits were crafted so as to produce specific design or results. The respondent also pointed out that the petitioners filed Constitutional Petition No. 26 of 2013 in which they conceded that this Court does not have jurisdiction to hear and determine the matter; and therefore they are estopped from asserting that the Court has jurisdiction to determine this Petition.
[15] The respondent also deposed, at paragraph 37 of the Replying Affidavit, that the Court does not have jurisdiction to hear and determine the Petition owing to the fact that the petitioners had an opportunity to appeal against the decision of the Court Martial to the High Court under Section 115(1)(a) of the Armed Forces Act. The respondent added that this Petition is an attempt to re-open cases that have already been finally heard and determined by a court of competent jurisdiction. The respondent annexed to his affidavit copies of extracts of the Report of the Committee appointed to review Courts Martial findings and sentences in the trials of the ex-Kenya Air Force personnel to buttress his averments.
[16] The respondent quoted Section 86(4) of the retired Constitution to support his averment that the Constitution was specific on how the fundamental rights and freedoms would apply to members of the Armed Forces by making an exception under Section 86(4), which provided that:
“In relation to a person who is a member of a disciplined force raised under and law in force in Kenya, nothing contained in or done under the authority of the disciplinary law of that force shall be held inconsistent with or in contravention of any of the provisions of this chapter other than Sections 71, 73 and 74.”
[17] The respondent pointed out that since the Petition was brought under Sections 70, 72 and 77, it lacks merit and ought to be dismissed with costs in the interest of justice.
[18] The petitioners filed Further Affidavits in response to the generic averments of the respondent which they considered incorrect. For instance, the 1st petitioner denied that he was arraigned before the Court Martial or any court of law; and therefore the respondent’s averment that he was dismissed after being found guilty of an offence was not true. The other petitioners likewise pointed out the general assertions made by the respondent and pointed out that for some of them they appealed and had their sentences reduced. They reiterated their averments as pertains to their peculiar circumstances.
[19] The Petition was disposed of by way of viva voce evidence. All the petitioners attended court as witnesses, save for the 1st petitioner who was ailing and ultimately died. His case was thereafter withdrawn at the instance of counsel for the petitioners. The surviving petitioners adopted their averments in their respective affidavits and were thereafter cross-examined by counsel for the respondent.
[20] The respondent relied on the evidence of Lt. Leonard Omuse, a Records Officer with the Kenya Defence Forces (KDF). He testified that he joined the KDF who likewise adopted his averments as set out in the respondent’s Replying Affidavit. He reiterated that the records pertaining to the arrest, trial, conviction and dismissal of the petitioners had been disposed of by way of destruction. He then fielded questions in cross-examination and conceded, inter alia, that he was not in service when the incidents complained of took place and did not make any effort to ascertain the truth or otherwise of the petitioners’ allegations of torture.
[21] The parties were then invited to file their closing submissions. The petitioners relied on their written submissions dated 22nd May 2024. They provided a summary of their respective cases as well as a synopsis of the respondent’s response and proposed the following five issues for determination:
[a] Whether this Court has jurisdiction to hear and determine Petition;
[b] Whether the Petition is time-barred;
[c] Whether the delay in filing the Petition prejudiced the respondent;
[d] Whether the Petition is tainted by forum-shopping; and
[e] Whether the petitioners have proved their claims and whether they are entitled to the prayers sought.
[22] On whether the Court has jurisdiction to determine the Petition, the petitioners submitted that the issue was first raised on the 30th January 2020, whereupon directions were given for the filing of written submissions on the issue. The Court (Hon. Mativo, J. as he then was) was to initially deliver a ruling on the preliminary issue of jurisdiction, but later ordered that the issue of jurisdiction be determined in the judgment after the hearing of the Petition. Accordingly, the petitioners opted to rely on their written submissions dated 17th November 2020 as well as their List and Bundle of Authorities filed therewith.
[23] I have perused the said submissions and the authorities relied on by the petitioners. They refuted the respondent’s assertion that this Petition is in fact an appeal against their conviction and sentence by the Court Martial, disguised as a constitutional petition. They were categorical that by filing this Petition, they only see enforcement of their constitutional rights through declaratory orders and damages consequential to the declarations. They added that the Court Martial had no jurisdiction to determine the matters raised in the Petition so as to give rise to an appeal from the decision of the Court Martial.
[24] On whether the Petition herein is a labour claim, the petitioners submitted that, the respondent misrepresented the facts at paragraphs 35 and 36 of the Replying Affidavit as only one petitioner out of twenty in Petition No. 26 of 2013, who is not even a party to this Petition had unilaterally applied for that Petition to be transferred to ELRC. They explained that the order for transfer was made ex parte and therefore the petitioners herein applied to withdraw their respective cases before the ELRC confident that their matter is purely a constitutional matter; as opposed to a dispute between an employer and employee.
[25] The petitioners relied on Articles 23 and 165(3)(b) of the Constitution as well as Section 12 of the ELRC Act and submitted that all the reliefs sought by the petitioners fall within the jurisdiction of the High Court and not the ELRC. They relied on Philip Njoroge Kinyanjui & 66 others v Attorney General [2018] eKLR and Peter Tonny Wambua & 17 others v Attorney General [2017] eKLR in which the court held, in similar circumstances, that the cases fell within the jurisdiction of the High Court.
[26] On whether the Petition is time-barred, the petitioners relied on their earlier submissions and added that the legal position is that there is no limitation period for enforcement of constitutional rights and fundamental freedoms so long as the delay is explained. They relied on David Gitau Njau & others v Attorney General [2015] eKLR, Peter Mauki Kaijenja & 9 others v Attorney General v Chief of the Kenya Defence Forces & another [2019] eKLR, Zipporah Seroney & 5 others v Attorney General [2014] eKLR and Peter M. Kariuki v Attorney General [2014] eKLR for the proposition that the courts will not hesitate to hear or determine petitions concerning past violations of fundamental rights as an aspect of transitional justice in order to secure Kenya’s future free of gross human rights violations.
[27] In terms of inordinate delay, the petitioners relied on the decision of the Court of Appeal in Zinj Limited v Attorney General & 3 others [2019] eKLR. The Court of Appeal held that enforcement of fundamental rights is a matter of public policy; and therefore inordinate delay, estoppel, acquiescence or waiver cannot be a bar to enforcement. The petitioners also relied on Janmohamed & 2 others v Chelugui & 7 others [2022] KECA 720 (KLR), Wamwere & 5 others v Attorney General [2023] KESC 2 (KLR) among other authorities to underscore their assertion that they sufficiently explained the delay in their respective affidavits.
[28] On whether the delay in filing the Petition prejudiced the respondent, the petitioners reiterated their submissions on limitation and added that the allegations of prejudice at paragraphs 7 and 8 of the respondent’s Replying Affidavit were not proved. They relied on various provisions of the Public Archives and Documentation Service Act (PADSA) and submitted that, in the absence of lawful destruction of proceedings of the Court Martial, the alleged destruction of the records related to the attempted coup and the proceedings of the Court Martial, was done unlawfully and cannot be used as a defence in this case.
[29] The petitioners restated their litigation history to support their submission that they were not involved in the transfer of the earlier Petitions to the ELRC. They blamed the advocate for the petitioners in the ELRC Petitions for having withdrawn the Petitions from the High Court without consultation with the other parties; and added that miscalculation on the part of that counsel ought not to be visited on them.
[30] On whether the petitioners have proved their claims and whether they are entitled to the prayers sought, the petitioners submitted that their evidence was entirely uncontroverted by the respondent. They further submitted that the absence of medical reports does not detract from the fact that the petitioners were tortured and ill-treated. They relied on Harun Thungu Wakaba v Attorney General and the long line of cases in which that decision was followed for the proposition that torture is not only physical but includes mental pain or suffering entailed in prolonged detention in squalid conditions. Accordingly, the petitioners prayed that their Petition be allowed and the reliefs sought granted.
[31] On his part, the respondent proposed the following issues for determination vide his written submissions dated 29th May 2024:
[a] Whether the Court has jurisdiction to determine this Petition;
[b] Whether the petitioners’ claim is invalid by reason of inordinate delay;
[c] Whether the claim for torture, brutal, inhuman and degrading treatment was proved;
[d] Whether the petitioners have given proof on the alleged illegal detentions;
[e] Whether the petitioners have proved their claim for general and special damages.
[32] The respondent has raised an objection to the jurisdiction of this court on two fronts. Firstly, the respondent submitted the Petition herein is, in effect, an appeal in respect of the decision of the Court Martial. In the respondent’s view, this is an affront to Section 115 (1) (a) of the Armed Forces Act (Repealed). Secondly, it was the contention of the respondent that dispute before the court concerns the dismissal of the petitioners from employment, among other claims; and is therefore a matter falling within the jurisdiction of the Employment and Labour Relations Court. The respondent approached the issue from the
from the standpoint of Articles 162(2) and 165(5) of the Constitution that the Court is bereft of jurisdiction and added that this was the exact reason they filed Petition No. 26 of 2013 before the said court.
[33] It was further the submission of the respondent that the Petition is time-barred, having been filed 37 years after the alleged arrest, trial, conviction and subsequent dismissal of the petitioners from the Armed Forces. The respondent contended that the Petition is an afterthought since no adversity or compelling reason was cited on the petitioner’s part to justify the inordinate delay. Reliance was placed on the following authorities, among others, in which the petitions were struck out/dismissed on account of inordinate delay:
[a] Hezron Ndarera Onchiri v Attorney General [2020] eKLR in which the petitioner sought compensation for alleged torture and unlawful imprisonment arising from the events surrounding the failed coup of 1st August 1982.
[b] Joseph Miere Onoo v Attorney General [2015] eKLR where a petition alleging violations of various constitutional rights was dismissed on the ground of inordinate delay. The delay was for 27 years.
[c] Gilbert Guantai Mukindia v Attorney General [2019] in which a delay of 32 years in filing a petition in respect of arrest, alleged torture, and imprisonment of the petitioner was considered inordinate and the petition dismissed on that score.
[34] The respondent further submitted that the petitioners failed to discharge the burden of proving their allegations of torture, inhuman treatment or unlawful detention. He quoted from the cases of John Cheruiyot Rono v Attorney General, Petition No. 536 of 2015 and Monica Wangu Wamwere v Attorney General [2019] eKLR and submitted that the onus was on the petitioners to prove their allegations to the requisite standard. Accordingly, the respondent urged for the dismissal of the Petition with costs.
[35] Having given consideration to the averments set out in the Petition, the affidavits filed and the evidence adduced by the parties in respect thereof, as well as their written submissions and the authorities they relied on, the issues for consideration can be as follows:
[a] Whether this Court has jurisdiction to hear and determine Petition;
[b] Whether the Petition has been brought after inordinate delay;
[e] Whether the petitioners have proved their claims and whether they are entitled to the prayers sought.
A. On jurisdiction:
[36] The paramountcy of jurisdiction was aptly captured in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) as follows:
“...Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds that it is without jurisdiction…”
[37] It is trite that jurisdiction of a court must be explicit and therefore flows from the Constitution and legislation. The Supreme Court made this point in the case of Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) when it held:
“68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law…”
[38] The jurisdiction of the High Court is provided for in Article 165(3) of the Constitution as follows:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
[39] Article 165(5) of the Constitution is explicit that:
(5) The High Court shall not have jurisdiction in respect of matters—
(a) reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).
[40] Article 162(2) and (3) of the Constitution provides for Courts of equal status to the High Court. It provides:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[41] Pursuant to the above provisions, Parliament enacted the Employment and Labour Relations Act, which stipulates as follows in Section 12:
"The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations..."
[42] Accordingly, the Supreme Court had occasion to express itself in connection with the equal status superior courts in the case of Republic v Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment), as follows:
“51… it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions. That is why this Court has reaffirmed its position that the jurisdiction of Courts is derived from the Constitution, or legislation (see In Rethe Matter of the Interim Independent Electoral Commission, at paras. 29 and 30; and Samuel Kamau Macharia and Another v. Kenya Commercial Bank and Two Others, Sup.Ct. Civil Application No. 2 of 2011 [para. 68]). In this instance, the jurisdiction of the specialized Courts is prescribed by Parliament, through the said enactment of legislation relating, respectively, to the ELC and the ELRC. Such legislation is to be interpreted in line with relevant constitutional provisions hence our position in Gatirau Peter Munya v. Dickson Mwenda Kithinji and Two Others, Sup. Ct. Civil Application No. 5 of 2014; [2014] eKLR, where we examined the constitutional provisions alongside legislative provisions on elections, and held [para. 77] that “ the Elections Act, and the Regulations thereunder, are normative derivatives of the principles embodied in Articles 81 and 86 of the Constitution, and that in interpreting them, a court of law cannot disengage from the Constitution.” In the instant case too, we take guidance from the Constitution, as we interpret it alongside the relevant statute law, pertaining to the specialized courts.
52.In addition to the above, we note that pursuant to article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relation
[...truncated]