Brief Facts
1. The petition dated 7 th November 2022 is supported by the petitioners’ affidavits of even date and Further Affidavits dated 26 th June 2023, 19 th June 2023 and 10 th July 2023.
2. The petition is founded on the alleged brutal and unlawful arrest, torture and being kept incommunicado in prolonged detention and released without being charged or court martialled in violation of petitioner’s rights under sections 70(a), 72(1), (3), 74(1) & 77 of the retired Constitution, the equivalent to Articles 27(1), (2), 28, 29(a), (d), (f), 49(1)(f) & 50(2) of the current Constitution.
3. The petitioners therefore seek the following reliefs:-
i) A declaration that the brutal arrest, and the violence, cruel brutalities, extreme inhuman and degrading conditions that the Petitioners were subjected to in the various military, police and prisons’ custody in a bid to extort confessions from them were in breach of the fundamental rights and freedoms of the Petitioners to human dignity, protection of the law, freedom from torture, cruel, inhuman and/or degrading treatment or punishment guaranteed by sections 70(a) and 74(1) of the former Constitution (now Articles 27(1), (2), 28 and 29(a),(c),(d),(f) of the Constitution of Kenya, 2010).
ii) A declaration that the more than 7 months that the Petitioners were detained incommunicado in military, police and prisons’ custody without trial was arbitrary, unlawful, illegal and unconstitutional and a violation of the fundamental rights of the Petitioners to human dignity, protection of law, personal liberty and freedom from cruel, inhuman and degrading treatment and/or punishment guaranteed by sections 70(a), 72(3) and 74(1) of the former Constitution (now Articles 27(1), (2), (28, 29 (a)) and 49(1)(f) and 50(2) of the Constitution of Kenya, 2010.)
iii) A declaration that the arbitrary and unlawful termination of the Petitioners’ service from the armed forces without a hearing and without any benefits was unlawful, inhuman and cruel deprivation of the Petitioners’ means of livelihoods in violation of their fundamental rights to human dignity, to life and freedom from cruel and inhuman treatment and/or punishment contrary to sections 70 (a),71 (1), and 74 (1) of the former Constitution (now Articles 26 (1) and (3), 28 and 29 (f) of the Constitution of Kenya, 2010.)
iv) General and exemplary damages consequential upon the declarations of violations of fundamental rights and freedoms of the Petitioners in prayers (i) to (iii) above as may be assessed by this Honourable Court.
v) Costs of the Petition.
vi) Interest on damages and costs in prayers (iv) and (v) above.
4. In opposition to the petition, the respondents filed a replying affidavit dated 17 th December 2024.
5. The matter proceeded via viva voce evidence.
The Petitioners’ Case
6. The petitioners were serving officers of the Kenya Air Force (“KAF”) in various technical fields at the time of the 1 st August 1982 attempted military coup. The 1 st , 2 nd , 3 rd , 4 th and 6 th petitioners were arrested from various bases of the KAF by officers of the Kenya Army and the Kenya Navy on 1 st August 1982 while the 5 th petitioner was arrested by police officers at a police station in his rural home in Tharaka Nithi County and handed over to officers of the Kenya Army. All the petitioners were arrested on suspicion of plotting or participating in the attempted coup.
7. The petitioners state that, during and following their arrest, they were stripped naked, beaten, forced to walk on their knees, whipped, kicked and bludgeoned and thereafter detained incommunicado in various military, police and prison facilities. They further state that while in custody they were subjected to harsh and degrading conditions, including solitary confinement, detention in waterlogged or overcrowded cells, deprivation of food and water, lack of sanitation and medical attention, physical assaults and coercive interrogation intended to procure confessions concerning the attempted coup.
8. The petitioners contend that they were held in pre-trial or pre-arraignment detention for periods exceeding seven months. They state that some were ultimately released without charge while others went through Court Martial proceedings . They further contend that they were dismissed from the Armed Forces on the basis that their services were no longer required, without being afforded a hearing and without being paid terminal benefits.
9. The petition was filed approximately forty years after the events complained of. The petitioners attribute the delay principally to fear of the Government of the late President Daniel arap Moi, their apprehension concerning the independence of State institutions, whilst the promulgation of the Constitution of Kenya, 2010, the subsequent demise of President Moi in 2020 and the recommendations of the Truth, Justice and Reconciliation Commission (“TJRC”), increased their confidence to pursue redress. They further contend that that judgments previously obtained by former KAF officers in similar constitutional petitions have remained unsettled and that successive governments of the late President Mwai Kibaki and former President Uhuru Kenyatta, had demonstrated no intention of according justice to former KAF officers who suffered torture and unlawful detention following the failed coup. They contended that the respondents are therefore estopped from relying on delay to contest their claim when they have not satisfied any judgment of those who sued before them.
10. The petitioners also state that there being no time limitation for vindication of fundamental rights and freedoms, and in the context of transitional justice the honourable Court should determine their claims on their merits.
11. PW1, Michael James Gatari , testified on 5/10/2023. He relied on the affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023 and testified that he was enlisted into the KAF as a Cadet Officer on 2 nd July 1974 and was a Captain and Officer-in-Charge of Aircraft Ground Equipment at Nanyuki KAF Base at the time of the attempted coup. He produced in evidence his service record as P. exhibit 1.
12. He further stated that in the afternoon of 1 st August 1982, Kenya Army soldiers from the neighboring Nanyuki Barracks entered his Nanyuki Air Base, ordered all KAF officers to surrender, disarmed them, stripped them naked, beat them severely using kicks, fists, slaps and other weapons and locked them in the Supplies Block where they were vetted of what they knew of the coup. Thereafter, he was subsequently held at Nyeri G.K. Prison also known as King’ong’o prison, Kamiti and Naivasha prisons all the while being semi-naked and being beaten by escorting military officers.
13. PW1 narrated that he remained detained in the said prisons completely incommunicado , frequently being beaten up by prison warders, police and army officers, held in solitary confinement under inhuman conditions, including in a waterlogged cell without any lighting, denied food, water, bedding, toilet facilities and interrogated regarding alleged involvement in planning the failed coup as the officers coerced him to confess involvement.
14. PW1 averred that he was detained without trial and subjected to torture and ill-treatment for 7 months and 16 days from 1 st August 1982 to 16 th March 1983 when he was informed that investigations had established that he had not committed any crime and he was released from detention.
18. Furthermore, upon being released from detention PW1 was also informed that he had already been dismissed from the Kenya Armed Forces, warned never to report to any military establishment, denied any explanation or letter of dismissal and was not paid any terminal benefits.
19. Counsel leading the PW 1 probed on why it took him 40 years to institute this Petition to which he replied thus:
“One was fear of government in place; President Moi was very powerful and very influential. (informed that President Moi left office in 2002), Kibaki came in but my belief was that there was strong influence of Moi in the system. I was not confident anything can happen even after Moi left.”
On cross-examination by Mr. Musyoka for the Respondent, PW 1 was challenged to provide evidence that he was actually in jail to which he responded:
“It is common knowledge…I have no document to show that.” On medical evidence substantiating allegations of torture, PW 1 similarly replied:
“No, I have not tabled that.”
20. PW2 Samson Kipkenei Kebeney , also testified on 5/10/2023. He relied on his affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023 and testified that he was enlisted to the KAF on 2 nd July 1974 and after basic military training he was stationed at Eastleigh Air Base Service No. 021877 and KAF Nanyuki in various capacities, and by the time of the coup attempt he was a Sergeant. He produced his Certificate of service- P. exhibit 2.
21. PW2 testified that, on the day of the coup attempt on 1 st August 1982, he was stationed at Eastleigh Air Base and maintained that he was not aware of any coup plot and merely obeyed lawful orders issued by his superior officers.
22. PW2 stated that after the attempted coup was suppressed, heavily armed officers of the Kenya Army and Kenya Navy entered Eastleigh Air Base and ordered all KAF personnel to surrender and they all surrendered peacefully but despite the peaceful surrender, he was arrested, severely beaten using gun butts, kicks, fists, slaps and sticks, stripped naked and bundled into an army truck before being transported to Kamiti Maximum Security Prison (hereafter "Kamiti") while the beatings continued.
23. PW2 further averred that while in Kamiti, he was forced to walk on his knees on a rocky path as prison and military officers continued to beat him. He was denied both food and water for 2 days and was detained without trial for 4 months in overcrowded, poorly ventilated cells, without toilet facilities and with only tattered pieces of blankets infested with lice and bedbugs, making it almost impossible for him to sleep, and was subjected to repeated interrogations by police and army officers who beat him up coercing him to confess participation in planning the failed coup, which allegations he consistently denied.
24. PW2 narrated that he was transferred from Kamiti to Naivasha Maximum Security Prison (hereafter "Naivasha") where he was first detained in solitary confinement in a dark, waterlogged cell with the smell of human waste, without lighting and denied food, water and toilet facilities. He was detained without trial in Naivasha for 3 months where he was repeatedly beaten up with slaps, fists, kicks, gun butts and batons by army and police officers during interrogations and frequently denied food.
25. PW2 further stated that around March 1983, he was transferred to Kahawa Garrison in Nairobi where he remained detained in the guard room for about 2 weeks until the 16 th of March 1983when he was informed that investigations had established that he had not committed any offence and was being released from detention.
26. Upon release, PW2 stated that he was told by a senior army officer that he had been dismissed from service but was not furnished with any dismissal letter or any reasons. He was warned not to go to any military base/installation. He was given worn-out civilian clothes, escorted to Nairobi Railway Station and given bus fare to take him his rural home in Kapsabet, Nandi County.
27. PW2 stated that he was unlawfully detained without trial for a total period of 7 months and 16 days, from 1 st August 1982 to 16 th March 1983, throughout which period he was held completely incommunicado and subjected to torture and ill-treatment.
28. On cross-examination by Mr. Musyoka for the Respondents, PW 2 said he had no document to show that he was in any of the mentioned prisons.
29. PW3 Nelson Kiprotich Chepsiror , briefly testified on 5/10/2023 and was sttod down. He subsequently took to the witness stand on 4/12/2024 and complteled his testimony. He relied on his affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023. He testified that he was enlisted into the KAF on 7th February 1979 and was a Senior Private at the time of the attempted coup.
30. He narrated that on the material day at around 2.00 p.m, Kenya Army soldiers stormed Nanyuki Air Base, ordered all Kenya Air Force personnel to surrender, arrested all of them including himself, stripped them naked, brutally beat them with fists, slaps, kicks and gun butts before being detained in the Supplies Block where he underwent repeated interrogations accompanied by severe, brutal and indiscriminate beatings by the interrogating army officers.
31. PW3 stated that he was subsequently detained in Kamiti Maximum Security Prison and Naivasha Maximum Prison where the beatings, deprivation food and water continued and he was held sometimes in solitary waterlogged cells and at times in overcrowded cells and was interrogated, threatened with further solitary confinement until he signed a false confession to save his life. Explaining why it took him long to seek justice, PW3 stated in chief as follows:
“The Government of Moi you could not come out to complain. Also, the issue of money. We were arrested and jailed, we have not had any means.”
32. On 8 th March 1983, he was escorted to the Court Martial at Langata Army Barracks and charged with the offence of mutiny and pleaded guilty to the charge on advice of the military counsel assigned to him . He was convicted and sentenced to one (1) year's imprisonment which he served at Industrial Area and Kisumu G.K. Prisons (also known as Kodiaga Prison), and was released on or about 7 th March 1984 . Upon his release from prison, PW3 stated that he was informed that he had been dismissed from the armed forces and warned never to go to any military base.
33. PW3 further stated that he was unlawfully held incommunicado in pre-trial detention for 7 months and 8 days, from 1 st August 1982 to 8 th March 1983, and was repeatedly tortured, ill-treated and denied basic needs such as food, water and medical treatment for injuries and pain inflicted on him by army and prison officers, and subsequently unlawfully dismissed from the armed forces without a hearing, all in violation his fundamental rights and freedoms guaranteed by the former Constitution.
34. PW4 John Nyaga Kaibiru , relied on his affidavit dated 7 th November 2022 and further affidavit dated 10 th July 2023. He testified that he was enlisted into the KAF on 15 th August 1974 and was a Corporal at the time of the attempted coup. Upon hearing about the coup through the radio whilst at his parents’ home in Kathangacini village, as directed in the radio news, he surrendered at Gatunga Police Station on 4 th August 1982 and was arrested and transferred to Nanyuki Air Base, where he was stripped to his undergarments, severely beaten with kicks, slaps and gun butts and forced to walk on his knees, detained without medical attention and on one meal a day until 13 th August 1982 by the Kenya army officers.
35. PW4 stated that from 13 th August 1982, he was thereafter detained in Kamiti Maximum Security Prison and Naivasha Maximum Security prison half-naked, in solitary confinement for several days in a dark, waterlogged cell, severely beaten, denied food, drinking or bathing water, toilet facilities and sometime forced to drink the dirty water in the flooded cell in order to survive whilst subjected to repeated interrogation by police officers, Criminal Investigation Department (CID) officers, Special Branch officers and army officers, who coerced him to confess involvement in the attempted coup but he refused.
36. PW4 further narrated that on 3 rd March 1983 he was escorted to Kahawa Army Garrison where a senior army officer informed him that he had been exonerated and was being released and admitted to the newly formed 82 Air Force . He was allocated a new service number for the 82 Air Force and informed that he would later receive information from his local provincial administration on the date for reporting to duty. However, no such communication was ever made and he was never redeployed.
37. PW4 revealed that he was unlawfully detained incommunicado , without trial for 7 months, from 4 th August 1982 to 3 rd March 1983, during which period he was subjected to torture and cruel, ill-treatment in violation his fundamental rights and freedoms guaranteed by the former Constitution.
38. PW5 Nicholas Njau Ndiritu , relied on his affidavit dated 7 th November 2022 and further affidavit dated 19 th June 2023. He testified that he was enlisted into the KAF on 24 th December 1980 No. 025006 and was a Junior Private at the time of the attempted coup.
39. PW5 stated that he was brutally arrested on 1 st August 1982 at Nanyuki Air Base by army soldiers from the neighbouring 1 st Kenya Rifles (1KR) who stripped him naked and detained him in the Supplies Block for two 2 weeks. He was denied food, drinking water and sleep, repeatedly beaten and continuously interrogated and coerced to falsely confess planning the coup.
40. PW5 further narrated that after detention at Nanyuki Air Base, he was detained at Eastleigh Air Base, Kamiti Maximum Security Prison and Naivasha Maximum Security Prison where he was naked, severely beaten by prison warders with sticks, batons, fists, slaps and kicks, detained sometimes in solitary confinement in a dark waterlogged cell, without lighting or toilet facilities, in overcrowded cells, without ventilation, permanently lit, denied food, drinking water and bathing water as prison warders claimed there were no food rations for soldiers in prisons and was allowed outside the cell for only one hour each day.
41. PW5 testified that during detention in Naivasha Maximum Prison he was repeatedly interrogated by police and army officers who threatened to detain him in the waterlogged cell unless he confessed to planning the coup. Fearing he would die from starvation and the harsh conditions of solitary confinement, he eventually signed the prepared statement without reading its contents, after which the interrogations ceased. He revealed that he was detained without trial in Naivasha and Kamiti until 31 st December 1982 when he was arraigned before the Court martial at Langata Barracks charged with the offence of mutiny to which he pleaded not guilty and was returned back to Kamiti and was never taken back to the Court martial for trial.
42. On 23 rd February 1983 he was escorted to Kahawa Army Barracks and a senior military officer informed him that he was being released from detention but had been dismissed from the armed forces and warned never to go to any military base. He was then escorted to Machakos Country Bus Station, given Kshs. 8 as bus fare to his rural home and never received any information regarding the unresolved Court Martial proceedings.
43. PW5 stated that he was unlawfully detained without trial for 7 months, from 1 st August 1982 to 23 rd February 1983, and in that period he was tortured and ill-treated, denied medical treatment for injuries inflicted on him, frequently denied food and held incommunicado and was dismissed from service without being afforded any hearing and without payment of salary or terminal benefits.
44. The 3 rd Petitioner, Douglas Macharia Ruiru, filed his affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023. However, he was unable to testify orally before the court on the basis that he lived in the United States of America and due to the nature of his work, he could not attend a virtual hearing. On 4 th December 2024, the court held that since directions were given that the hearing of the case was by way of viva voce evidence, it was too late in the day to avoid the court directions when all the other petitioners had testified orally. Further, the respondents would be prejudiced as they insisted on cross examining the 3 rd petitioner on the documents he sought to rely on. Thus the court disallowed the application to adopt the 3 rd petitioner’s affidavits and ordered that in the absence of the 3 rd petitioner attending court, his affidavit evidence would be excluded in the proceedings.
The Respondents’ Case
45. In defence, the respondents called Major Mwenda Benard who testified as DW1. He relied on his replying affidavit dated 17 th December 2024. Major Mwenda Bernard testified that he is a commissioned officer appointed as Staff Officer II at the Record Department of the Kenya Defence Headquarters in Hurlingham Nairobi. He stated that the petitioners waited forty years before seeking redress and that their explanations are insufficient. Furthermore, DW1 countered that, even if there was fear of the former regime, that could explain the period before 2002, yet the petitioners did not satisfactorily explain why they did not institute proceedings after the change of Government in 2002 or following the promulgation of the Constitution of Kenya, 2010.
46. DW1 further stated that the delay has prejudiced their defence because persons who could have testified are no longer available and the records have also been lost or degraded. He stated that the petitioners failed to prove torture or inhuman treatment and that the said allegations are largely unsupported by documentary or medical evidence and that the petitioners did not identify with sufficient precision the persons responsible for the alleged violations.
47. DW1 further contended that the petitioners were subject to the Armed Forces Act and its rules and regulations and therefore their arrests arose from the attempted coup and that their detention and disciplinary processes were governed by the military law applicable at the time.
48. The petition was disposed of by way of written submissions.
Petitioners’ Submissions
49. The petitioners identified three issues for determination as follows: whether the petition is time barred by limitation of actions; whether the petitioners’ proved that their fundamental rights and freedoms were violated and whether the petitioners are entitled to damages and to what amount. On the first issue, the petitioners submitted that they were conscious of the fact that they filed the petition 40 years after the complained violations and thus explained the delay in their supporting affidavits. They further submitted that all the superior courts are unanimous that neither the former nor the current Constitution provide for limitation of actions for enforcement of fundamental rights and freedoms. Given the supremacy of the Constitution, statutes of limitation do not apply to actions for enforcement of the Bill of Rights. Reliance was put on the celebrated case of Dominic Arony Amolo v Attorney General [2003]eKLR, Hayanga J, succinctly stated the law thus (page 2 and 4):-
…The point to decide here is whether breach of Fundamental Rights and redress thereof can be brought to Court any time irrespective of the provisions of Limitation Act……To put it another way whether in interpretation of constitutionally entrenched provisions of Fundamental Rights, the Court is in any way circumscribed by legislative statutes like Limitation Act. Section 3 of the Kenyan Constitution provides;- “This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”….. I, therefore, think and I so hold that Section 3 of the Constitution excludes the operation of Cap 22 with regards to claims under Fundamental Rights and further that the Fundamental Rights provisions cannot be interpreted to be subject to the legal heads of legal wrongs or causes of action enunciated under the Limitation Act Cap 22.
50. They further submitted that the Court of Appeal has held that the doctrine of inordinate delay cannot be applied as a bar to enforcement of fundamental rights and freedoms, citing the cases of Zinj Limited v Attorney General & 3 others [2019]eKLR where the Court reiterated that:-
…..Fundamental rights were not kept in the Constitution simply for individual benefits – these rights were put up as a matter of public policy and therefore the doctrine of inordinate delay, estoppel, acquiescence or waiver cannot unequivocally be applied as a bar to enforcement of fundamental rights.
51. In the case of Janmohamed & 2 others v Chelugui & 7 others [2022] KECA 720 KLR the Court of Appeal reaffirmed thus:-
Guided and convinced of the sound jurisprudence that there is no time limit for filing a constitutional petition, we find the ground that the trial judge erred in failing to dismiss the Petition on account of delay, acquiescence and laches has no merit. Unless expressly stated in the Constitution, the period of limitation in the Limitation of Actions Act do not apply to violation of rights and freedoms guaranteed in the Constitution. The law concerning limitation of actions cannot be used to shield the State or any person from claims of enforcement of fundamental rights and freedoms under the Bill of Rights. (See Dominic Arony Amolo vs. Attorney General Nairobi HC Misc. Civil Case No. 1184 of 2003 (O.S) [2010] eKLR; Otieno Mak’Onyango vs. Attorney General & another Nairobi HCCC No. 845 of 2003). In our view, subject to the limitations in Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions Act . However, each case is to be decided on its own merits and a caveat need to be stated as correctly observed in Johnstone Ogechi vs. The National Police Service [2017] eKLR.
52. The petitioners further submitted that the Supreme Court in Wamwere & 5 others v Attorney General [2023]KESC 2KLR, affirmed this Court and the Court of Appeal on the inapplicability of limitation period in enforcement of fundamental rights and freedoms, thus:-
.……We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case-by-case basis.
53. The petitioners argued that they gave reasons for the delay in coming to court but as the replying affidavit of Major Mwenda reveals, the explanations for delay proffered by them are impugned by the respondents on the ground that other petitioners who were members of the KAF and claimed to have been subjected to similar violations of their rights and freedoms filed petitions earlier and in any case there cannot be valid reasons for coming to court many years after the change of the Moi regime in 2002 and the promulgation of the 2010 Constitution. They further argued that the petition is intertwined with the national quest for righting past injustices that include gross violations of fundamental rights such as claimed in their petition. They further submitted that the three tiers of superior courts have affirmed that it is a sound judicial policy for the courts to assure transitional justice by vindicating past violation of fundamental rights in order to secure the country’s future. Expounding on the decision of the Court of Appeal in Cholmondely v Republic [2008]eKLR, Lenaola J, (as he then was), in Jennifer Muthoni Njoroge & 10 others v Attorney General [2012]eKLR, held that:-
..The reasoning for the proposition that it is the State that must be held liable also found favour in the case of Cholmondely v Republic [2008] eKLR ……….In the same case, the Court of Appeal admitted failings of the Courts in the past and argued that Courts “must now vigorously enforce and enforce against the State the fundamental rights and freedoms of the individual guaranteed by the Constitution.” I emphasize this point because it is quite obvious to me that as a lesson for the future, the State must today pay the price for its failings in the past.
54. Like dependence was placed in the case of Zipporah Seroney & 5 others v Attorney General [2020]eKLR , where a petition for enforcing fundamental rights during the ‘Kenyatta I’ regime. Korir J, (as he then was) held:-
….Indeed this petition relates to events that occurred during the presidency of Mzee Jomo Kenyatta. The petition has been brought about forty five years after the deceased was allegedly arrested and detained….. In the circumstances of this case, it is not too late to peer into the past and correct the injustices that may have occurred in our history. I therefore reject the Respondent’s assertion that this petition is time barred.
55. Further in the case of Wamwere & 5 others v Attorney General (supra), the Supreme Court finally answered the respondents argument by affirming that affording transitional justice to petitioners is a valid ground for excusing belated enforcement of fundamental rights in the context of the transformative Constitution of Kenya 2010 and held:-
With respect to the consolidated appeal, the decisions of the two superior courts largely turned on the failure by the appellants to file their claims immediately after two critical transitional moments in Kenya’s recent democratization history. This being after the 2002 transition when President Moi left office or immediately after the 2010 transition to a new constitutional dispensation. The two superior courts observed that as a matter of fact many other similarly situate victims of past abuses filed their claims in court immediately after these transitional moments. This leads us to pose the question; given the nature of transitional justice claims, was it fatal for the appellants to have filed their
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1. The petition dated 7 th November 2022 is supported by the petitioners’ affidavits of even date and Further Affidavits dated 26 th June 2023, 19 th June 2023 and 10 th July 2023.
2. The petition is founded on the alleged brutal and unlawful arrest, torture and being kept incommunicado in prolonged detention and released without being charged or court martialled in violation of petitioner’s rights under sections 70(a), 72(1), (3), 74(1) & 77 of the retired Constitution, the equivalent to Articles 27(1), (2), 28, 29(a), (d), (f), 49(1)(f) & 50(2) of the current Constitution.
3. The petitioners therefore seek the following reliefs:-
i) A declaration that the brutal arrest, and the violence, cruel brutalities, extreme inhuman and degrading conditions that the Petitioners were subjected to in the various military, police and prisons’ custody in a bid to extort confessions from them were in breach of the fundamental rights and freedoms of the Petitioners to human dignity, protection of the law, freedom from torture, cruel, inhuman and/or degrading treatment or punishment guaranteed by sections 70(a) and 74(1) of the former Constitution (now Articles 27(1), (2), 28 and 29(a),(c),(d),(f) of the Constitution of Kenya, 2010).
ii) A declaration that the more than 7 months that the Petitioners were detained incommunicado in military, police and prisons’ custody without trial was arbitrary, unlawful, illegal and unconstitutional and a violation of the fundamental rights of the Petitioners to human dignity, protection of law, personal liberty and freedom from cruel, inhuman and degrading treatment and/or punishment guaranteed by sections 70(a), 72(3) and 74(1) of the former Constitution (now Articles 27(1), (2), (28, 29 (a)) and 49(1)(f) and 50(2) of the Constitution of Kenya, 2010.)
iii) A declaration that the arbitrary and unlawful termination of the Petitioners’ service from the armed forces without a hearing and without any benefits was unlawful, inhuman and cruel deprivation of the Petitioners’ means of livelihoods in violation of their fundamental rights to human dignity, to life and freedom from cruel and inhuman treatment and/or punishment contrary to sections 70 (a),71 (1), and 74 (1) of the former Constitution (now Articles 26 (1) and (3), 28 and 29 (f) of the Constitution of Kenya, 2010.)
iv) General and exemplary damages consequential upon the declarations of violations of fundamental rights and freedoms of the Petitioners in prayers (i) to (iii) above as may be assessed by this Honourable Court.
v) Costs of the Petition.
vi) Interest on damages and costs in prayers (iv) and (v) above.
4. In opposition to the petition, the respondents filed a replying affidavit dated 17 th December 2024.
5. The matter proceeded via viva voce evidence.
The Petitioners’ Case
6. The petitioners were serving officers of the Kenya Air Force (“KAF”) in various technical fields at the time of the 1 st August 1982 attempted military coup. The 1 st , 2 nd , 3 rd , 4 th and 6 th petitioners were arrested from various bases of the KAF by officers of the Kenya Army and the Kenya Navy on 1 st August 1982 while the 5 th petitioner was arrested by police officers at a police station in his rural home in Tharaka Nithi County and handed over to officers of the Kenya Army. All the petitioners were arrested on suspicion of plotting or participating in the attempted coup.
7. The petitioners state that, during and following their arrest, they were stripped naked, beaten, forced to walk on their knees, whipped, kicked and bludgeoned and thereafter detained incommunicado in various military, police and prison facilities. They further state that while in custody they were subjected to harsh and degrading conditions, including solitary confinement, detention in waterlogged or overcrowded cells, deprivation of food and water, lack of sanitation and medical attention, physical assaults and coercive interrogation intended to procure confessions concerning the attempted coup.
8. The petitioners contend that they were held in pre-trial or pre-arraignment detention for periods exceeding seven months. They state that some were ultimately released without charge while others went through Court Martial proceedings . They further contend that they were dismissed from the Armed Forces on the basis that their services were no longer required, without being afforded a hearing and without being paid terminal benefits.
9. The petition was filed approximately forty years after the events complained of. The petitioners attribute the delay principally to fear of the Government of the late President Daniel arap Moi, their apprehension concerning the independence of State institutions, whilst the promulgation of the Constitution of Kenya, 2010, the subsequent demise of President Moi in 2020 and the recommendations of the Truth, Justice and Reconciliation Commission (“TJRC”), increased their confidence to pursue redress. They further contend that that judgments previously obtained by former KAF officers in similar constitutional petitions have remained unsettled and that successive governments of the late President Mwai Kibaki and former President Uhuru Kenyatta, had demonstrated no intention of according justice to former KAF officers who suffered torture and unlawful detention following the failed coup. They contended that the respondents are therefore estopped from relying on delay to contest their claim when they have not satisfied any judgment of those who sued before them.
10. The petitioners also state that there being no time limitation for vindication of fundamental rights and freedoms, and in the context of transitional justice the honourable Court should determine their claims on their merits.
11. PW1, Michael James Gatari , testified on 5/10/2023. He relied on the affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023 and testified that he was enlisted into the KAF as a Cadet Officer on 2 nd July 1974 and was a Captain and Officer-in-Charge of Aircraft Ground Equipment at Nanyuki KAF Base at the time of the attempted coup. He produced in evidence his service record as P. exhibit 1.
12. He further stated that in the afternoon of 1 st August 1982, Kenya Army soldiers from the neighboring Nanyuki Barracks entered his Nanyuki Air Base, ordered all KAF officers to surrender, disarmed them, stripped them naked, beat them severely using kicks, fists, slaps and other weapons and locked them in the Supplies Block where they were vetted of what they knew of the coup. Thereafter, he was subsequently held at Nyeri G.K. Prison also known as King’ong’o prison, Kamiti and Naivasha prisons all the while being semi-naked and being beaten by escorting military officers.
13. PW1 narrated that he remained detained in the said prisons completely incommunicado , frequently being beaten up by prison warders, police and army officers, held in solitary confinement under inhuman conditions, including in a waterlogged cell without any lighting, denied food, water, bedding, toilet facilities and interrogated regarding alleged involvement in planning the failed coup as the officers coerced him to confess involvement.
14. PW1 averred that he was detained without trial and subjected to torture and ill-treatment for 7 months and 16 days from 1 st August 1982 to 16 th March 1983 when he was informed that investigations had established that he had not committed any crime and he was released from detention.
18. Furthermore, upon being released from detention PW1 was also informed that he had already been dismissed from the Kenya Armed Forces, warned never to report to any military establishment, denied any explanation or letter of dismissal and was not paid any terminal benefits.
19. Counsel leading the PW 1 probed on why it took him 40 years to institute this Petition to which he replied thus:
“One was fear of government in place; President Moi was very powerful and very influential. (informed that President Moi left office in 2002), Kibaki came in but my belief was that there was strong influence of Moi in the system. I was not confident anything can happen even after Moi left.”
On cross-examination by Mr. Musyoka for the Respondent, PW 1 was challenged to provide evidence that he was actually in jail to which he responded:
“It is common knowledge…I have no document to show that.” On medical evidence substantiating allegations of torture, PW 1 similarly replied:
“No, I have not tabled that.”
20. PW2 Samson Kipkenei Kebeney , also testified on 5/10/2023. He relied on his affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023 and testified that he was enlisted to the KAF on 2 nd July 1974 and after basic military training he was stationed at Eastleigh Air Base Service No. 021877 and KAF Nanyuki in various capacities, and by the time of the coup attempt he was a Sergeant. He produced his Certificate of service- P. exhibit 2.
21. PW2 testified that, on the day of the coup attempt on 1 st August 1982, he was stationed at Eastleigh Air Base and maintained that he was not aware of any coup plot and merely obeyed lawful orders issued by his superior officers.
22. PW2 stated that after the attempted coup was suppressed, heavily armed officers of the Kenya Army and Kenya Navy entered Eastleigh Air Base and ordered all KAF personnel to surrender and they all surrendered peacefully but despite the peaceful surrender, he was arrested, severely beaten using gun butts, kicks, fists, slaps and sticks, stripped naked and bundled into an army truck before being transported to Kamiti Maximum Security Prison (hereafter "Kamiti") while the beatings continued.
23. PW2 further averred that while in Kamiti, he was forced to walk on his knees on a rocky path as prison and military officers continued to beat him. He was denied both food and water for 2 days and was detained without trial for 4 months in overcrowded, poorly ventilated cells, without toilet facilities and with only tattered pieces of blankets infested with lice and bedbugs, making it almost impossible for him to sleep, and was subjected to repeated interrogations by police and army officers who beat him up coercing him to confess participation in planning the failed coup, which allegations he consistently denied.
24. PW2 narrated that he was transferred from Kamiti to Naivasha Maximum Security Prison (hereafter "Naivasha") where he was first detained in solitary confinement in a dark, waterlogged cell with the smell of human waste, without lighting and denied food, water and toilet facilities. He was detained without trial in Naivasha for 3 months where he was repeatedly beaten up with slaps, fists, kicks, gun butts and batons by army and police officers during interrogations and frequently denied food.
25. PW2 further stated that around March 1983, he was transferred to Kahawa Garrison in Nairobi where he remained detained in the guard room for about 2 weeks until the 16 th of March 1983when he was informed that investigations had established that he had not committed any offence and was being released from detention.
26. Upon release, PW2 stated that he was told by a senior army officer that he had been dismissed from service but was not furnished with any dismissal letter or any reasons. He was warned not to go to any military base/installation. He was given worn-out civilian clothes, escorted to Nairobi Railway Station and given bus fare to take him his rural home in Kapsabet, Nandi County.
27. PW2 stated that he was unlawfully detained without trial for a total period of 7 months and 16 days, from 1 st August 1982 to 16 th March 1983, throughout which period he was held completely incommunicado and subjected to torture and ill-treatment.
28. On cross-examination by Mr. Musyoka for the Respondents, PW 2 said he had no document to show that he was in any of the mentioned prisons.
29. PW3 Nelson Kiprotich Chepsiror , briefly testified on 5/10/2023 and was sttod down. He subsequently took to the witness stand on 4/12/2024 and complteled his testimony. He relied on his affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023. He testified that he was enlisted into the KAF on 7th February 1979 and was a Senior Private at the time of the attempted coup.
30. He narrated that on the material day at around 2.00 p.m, Kenya Army soldiers stormed Nanyuki Air Base, ordered all Kenya Air Force personnel to surrender, arrested all of them including himself, stripped them naked, brutally beat them with fists, slaps, kicks and gun butts before being detained in the Supplies Block where he underwent repeated interrogations accompanied by severe, brutal and indiscriminate beatings by the interrogating army officers.
31. PW3 stated that he was subsequently detained in Kamiti Maximum Security Prison and Naivasha Maximum Prison where the beatings, deprivation food and water continued and he was held sometimes in solitary waterlogged cells and at times in overcrowded cells and was interrogated, threatened with further solitary confinement until he signed a false confession to save his life. Explaining why it took him long to seek justice, PW3 stated in chief as follows:
“The Government of Moi you could not come out to complain. Also, the issue of money. We were arrested and jailed, we have not had any means.”
32. On 8 th March 1983, he was escorted to the Court Martial at Langata Army Barracks and charged with the offence of mutiny and pleaded guilty to the charge on advice of the military counsel assigned to him . He was convicted and sentenced to one (1) year's imprisonment which he served at Industrial Area and Kisumu G.K. Prisons (also known as Kodiaga Prison), and was released on or about 7 th March 1984 . Upon his release from prison, PW3 stated that he was informed that he had been dismissed from the armed forces and warned never to go to any military base.
33. PW3 further stated that he was unlawfully held incommunicado in pre-trial detention for 7 months and 8 days, from 1 st August 1982 to 8 th March 1983, and was repeatedly tortured, ill-treated and denied basic needs such as food, water and medical treatment for injuries and pain inflicted on him by army and prison officers, and subsequently unlawfully dismissed from the armed forces without a hearing, all in violation his fundamental rights and freedoms guaranteed by the former Constitution.
34. PW4 John Nyaga Kaibiru , relied on his affidavit dated 7 th November 2022 and further affidavit dated 10 th July 2023. He testified that he was enlisted into the KAF on 15 th August 1974 and was a Corporal at the time of the attempted coup. Upon hearing about the coup through the radio whilst at his parents’ home in Kathangacini village, as directed in the radio news, he surrendered at Gatunga Police Station on 4 th August 1982 and was arrested and transferred to Nanyuki Air Base, where he was stripped to his undergarments, severely beaten with kicks, slaps and gun butts and forced to walk on his knees, detained without medical attention and on one meal a day until 13 th August 1982 by the Kenya army officers.
35. PW4 stated that from 13 th August 1982, he was thereafter detained in Kamiti Maximum Security Prison and Naivasha Maximum Security prison half-naked, in solitary confinement for several days in a dark, waterlogged cell, severely beaten, denied food, drinking or bathing water, toilet facilities and sometime forced to drink the dirty water in the flooded cell in order to survive whilst subjected to repeated interrogation by police officers, Criminal Investigation Department (CID) officers, Special Branch officers and army officers, who coerced him to confess involvement in the attempted coup but he refused.
36. PW4 further narrated that on 3 rd March 1983 he was escorted to Kahawa Army Garrison where a senior army officer informed him that he had been exonerated and was being released and admitted to the newly formed 82 Air Force . He was allocated a new service number for the 82 Air Force and informed that he would later receive information from his local provincial administration on the date for reporting to duty. However, no such communication was ever made and he was never redeployed.
37. PW4 revealed that he was unlawfully detained incommunicado , without trial for 7 months, from 4 th August 1982 to 3 rd March 1983, during which period he was subjected to torture and cruel, ill-treatment in violation his fundamental rights and freedoms guaranteed by the former Constitution.
38. PW5 Nicholas Njau Ndiritu , relied on his affidavit dated 7 th November 2022 and further affidavit dated 19 th June 2023. He testified that he was enlisted into the KAF on 24 th December 1980 No. 025006 and was a Junior Private at the time of the attempted coup.
39. PW5 stated that he was brutally arrested on 1 st August 1982 at Nanyuki Air Base by army soldiers from the neighbouring 1 st Kenya Rifles (1KR) who stripped him naked and detained him in the Supplies Block for two 2 weeks. He was denied food, drinking water and sleep, repeatedly beaten and continuously interrogated and coerced to falsely confess planning the coup.
40. PW5 further narrated that after detention at Nanyuki Air Base, he was detained at Eastleigh Air Base, Kamiti Maximum Security Prison and Naivasha Maximum Security Prison where he was naked, severely beaten by prison warders with sticks, batons, fists, slaps and kicks, detained sometimes in solitary confinement in a dark waterlogged cell, without lighting or toilet facilities, in overcrowded cells, without ventilation, permanently lit, denied food, drinking water and bathing water as prison warders claimed there were no food rations for soldiers in prisons and was allowed outside the cell for only one hour each day.
41. PW5 testified that during detention in Naivasha Maximum Prison he was repeatedly interrogated by police and army officers who threatened to detain him in the waterlogged cell unless he confessed to planning the coup. Fearing he would die from starvation and the harsh conditions of solitary confinement, he eventually signed the prepared statement without reading its contents, after which the interrogations ceased. He revealed that he was detained without trial in Naivasha and Kamiti until 31 st December 1982 when he was arraigned before the Court martial at Langata Barracks charged with the offence of mutiny to which he pleaded not guilty and was returned back to Kamiti and was never taken back to the Court martial for trial.
42. On 23 rd February 1983 he was escorted to Kahawa Army Barracks and a senior military officer informed him that he was being released from detention but had been dismissed from the armed forces and warned never to go to any military base. He was then escorted to Machakos Country Bus Station, given Kshs. 8 as bus fare to his rural home and never received any information regarding the unresolved Court Martial proceedings.
43. PW5 stated that he was unlawfully detained without trial for 7 months, from 1 st August 1982 to 23 rd February 1983, and in that period he was tortured and ill-treated, denied medical treatment for injuries inflicted on him, frequently denied food and held incommunicado and was dismissed from service without being afforded any hearing and without payment of salary or terminal benefits.
44. The 3 rd Petitioner, Douglas Macharia Ruiru, filed his affidavit dated 7 th November 2022 and further affidavit dated 26 th June 2023. However, he was unable to testify orally before the court on the basis that he lived in the United States of America and due to the nature of his work, he could not attend a virtual hearing. On 4 th December 2024, the court held that since directions were given that the hearing of the case was by way of viva voce evidence, it was too late in the day to avoid the court directions when all the other petitioners had testified orally. Further, the respondents would be prejudiced as they insisted on cross examining the 3 rd petitioner on the documents he sought to rely on. Thus the court disallowed the application to adopt the 3 rd petitioner’s affidavits and ordered that in the absence of the 3 rd petitioner attending court, his affidavit evidence would be excluded in the proceedings.
The Respondents’ Case
45. In defence, the respondents called Major Mwenda Benard who testified as DW1. He relied on his replying affidavit dated 17 th December 2024. Major Mwenda Bernard testified that he is a commissioned officer appointed as Staff Officer II at the Record Department of the Kenya Defence Headquarters in Hurlingham Nairobi. He stated that the petitioners waited forty years before seeking redress and that their explanations are insufficient. Furthermore, DW1 countered that, even if there was fear of the former regime, that could explain the period before 2002, yet the petitioners did not satisfactorily explain why they did not institute proceedings after the change of Government in 2002 or following the promulgation of the Constitution of Kenya, 2010.
46. DW1 further stated that the delay has prejudiced their defence because persons who could have testified are no longer available and the records have also been lost or degraded. He stated that the petitioners failed to prove torture or inhuman treatment and that the said allegations are largely unsupported by documentary or medical evidence and that the petitioners did not identify with sufficient precision the persons responsible for the alleged violations.
47. DW1 further contended that the petitioners were subject to the Armed Forces Act and its rules and regulations and therefore their arrests arose from the attempted coup and that their detention and disciplinary processes were governed by the military law applicable at the time.
48. The petition was disposed of by way of written submissions.
Petitioners’ Submissions
49. The petitioners identified three issues for determination as follows: whether the petition is time barred by limitation of actions; whether the petitioners’ proved that their fundamental rights and freedoms were violated and whether the petitioners are entitled to damages and to what amount. On the first issue, the petitioners submitted that they were conscious of the fact that they filed the petition 40 years after the complained violations and thus explained the delay in their supporting affidavits. They further submitted that all the superior courts are unanimous that neither the former nor the current Constitution provide for limitation of actions for enforcement of fundamental rights and freedoms. Given the supremacy of the Constitution, statutes of limitation do not apply to actions for enforcement of the Bill of Rights. Reliance was put on the celebrated case of Dominic Arony Amolo v Attorney General [2003]eKLR, Hayanga J, succinctly stated the law thus (page 2 and 4):-
…The point to decide here is whether breach of Fundamental Rights and redress thereof can be brought to Court any time irrespective of the provisions of Limitation Act……To put it another way whether in interpretation of constitutionally entrenched provisions of Fundamental Rights, the Court is in any way circumscribed by legislative statutes like Limitation Act. Section 3 of the Kenyan Constitution provides;- “This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.”….. I, therefore, think and I so hold that Section 3 of the Constitution excludes the operation of Cap 22 with regards to claims under Fundamental Rights and further that the Fundamental Rights provisions cannot be interpreted to be subject to the legal heads of legal wrongs or causes of action enunciated under the Limitation Act Cap 22.
50. They further submitted that the Court of Appeal has held that the doctrine of inordinate delay cannot be applied as a bar to enforcement of fundamental rights and freedoms, citing the cases of Zinj Limited v Attorney General & 3 others [2019]eKLR where the Court reiterated that:-
…..Fundamental rights were not kept in the Constitution simply for individual benefits – these rights were put up as a matter of public policy and therefore the doctrine of inordinate delay, estoppel, acquiescence or waiver cannot unequivocally be applied as a bar to enforcement of fundamental rights.
51. In the case of Janmohamed & 2 others v Chelugui & 7 others [2022] KECA 720 KLR the Court of Appeal reaffirmed thus:-
Guided and convinced of the sound jurisprudence that there is no time limit for filing a constitutional petition, we find the ground that the trial judge erred in failing to dismiss the Petition on account of delay, acquiescence and laches has no merit. Unless expressly stated in the Constitution, the period of limitation in the Limitation of Actions Act do not apply to violation of rights and freedoms guaranteed in the Constitution. The law concerning limitation of actions cannot be used to shield the State or any person from claims of enforcement of fundamental rights and freedoms under the Bill of Rights. (See Dominic Arony Amolo vs. Attorney General Nairobi HC Misc. Civil Case No. 1184 of 2003 (O.S) [2010] eKLR; Otieno Mak’Onyango vs. Attorney General & another Nairobi HCCC No. 845 of 2003). In our view, subject to the limitations in Article 24 of the 2010 Constitution, fundamental rights and freedoms cannot be tied to the shackles of Limitation of Actions Act . However, each case is to be decided on its own merits and a caveat need to be stated as correctly observed in Johnstone Ogechi vs. The National Police Service [2017] eKLR.
52. The petitioners further submitted that the Supreme Court in Wamwere & 5 others v Attorney General [2023]KESC 2KLR, affirmed this Court and the Court of Appeal on the inapplicability of limitation period in enforcement of fundamental rights and freedoms, thus:-
.……We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case-by-case basis.
53. The petitioners argued that they gave reasons for the delay in coming to court but as the replying affidavit of Major Mwenda reveals, the explanations for delay proffered by them are impugned by the respondents on the ground that other petitioners who were members of the KAF and claimed to have been subjected to similar violations of their rights and freedoms filed petitions earlier and in any case there cannot be valid reasons for coming to court many years after the change of the Moi regime in 2002 and the promulgation of the 2010 Constitution. They further argued that the petition is intertwined with the national quest for righting past injustices that include gross violations of fundamental rights such as claimed in their petition. They further submitted that the three tiers of superior courts have affirmed that it is a sound judicial policy for the courts to assure transitional justice by vindicating past violation of fundamental rights in order to secure the country’s future. Expounding on the decision of the Court of Appeal in Cholmondely v Republic [2008]eKLR, Lenaola J, (as he then was), in Jennifer Muthoni Njoroge & 10 others v Attorney General [2012]eKLR, held that:-
..The reasoning for the proposition that it is the State that must be held liable also found favour in the case of Cholmondely v Republic [2008] eKLR ……….In the same case, the Court of Appeal admitted failings of the Courts in the past and argued that Courts “must now vigorously enforce and enforce against the State the fundamental rights and freedoms of the individual guaranteed by the Constitution.” I emphasize this point because it is quite obvious to me that as a lesson for the future, the State must today pay the price for its failings in the past.
54. Like dependence was placed in the case of Zipporah Seroney & 5 others v Attorney General [2020]eKLR , where a petition for enforcing fundamental rights during the ‘Kenyatta I’ regime. Korir J, (as he then was) held:-
….Indeed this petition relates to events that occurred during the presidency of Mzee Jomo Kenyatta. The petition has been brought about forty five years after the deceased was allegedly arrested and detained….. In the circumstances of this case, it is not too late to peer into the past and correct the injustices that may have occurred in our history. I therefore reject the Respondent’s assertion that this petition is time barred.
55. Further in the case of Wamwere & 5 others v Attorney General (supra), the Supreme Court finally answered the respondents argument by affirming that affording transitional justice to petitioners is a valid ground for excusing belated enforcement of fundamental rights in the context of the transformative Constitution of Kenya 2010 and held:-
With respect to the consolidated appeal, the decisions of the two superior courts largely turned on the failure by the appellants to file their claims immediately after two critical transitional moments in Kenya’s recent democratization history. This being after the 2002 transition when President Moi left office or immediately after the 2010 transition to a new constitutional dispensation. The two superior courts observed that as a matter of fact many other similarly situate victims of past abuses filed their claims in court immediately after these transitional moments. This leads us to pose the question; given the nature of transitional justice claims, was it fatal for the appellants to have filed their
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