Brief Facts
1. The petition dated 24 th November 2023 is supported by the Petitioner’s affidavit in support of even dated and Further Affidavit dated 13 th June 2025.
2. The petition challenges the acts and omissions by the respondents for the failure to protect the elderly women in Kisii and Kilifi Counties from attacks and killings by members of the public on allegations of practicing witchcraft.
3. The Petition thus seeks the following reliefs: -
a) A declaration that by their acts and omissions the 1 st , 3 rd , 4 th , 5 th and 6 th respondents have failed in their duty to provide the victims of the killings in the counties of Kisii and Kilifi based on false claims of witchcraft on elderly women their right to life as allowed under the provisions of Article 26 of the Constitution.
b) A declaration that by their acts and omissions the 1 st , 3 rd , 4 th , 5 th and 6 th respondents have failed in their duty to provide the victims of the killings in the Counties of Kisii and Kilifi based on false claims of witchcraft on elderly women freedom and security of the person as allowed under the provisions of Article 29(c) & (f) of the Constitution.
c) A declaration that by their acts and omissions the 1 st , 3 rd , 4 th , 5 th and 6 th respondents have failed in their duty to adhere to the provisions of Article 10 of the Constitution.
d) A declaration that by their acts and omissions of the 1 st , 3 rd , 4 th , 5 th and 6 th respondents the victims of the killings in the counties of Kisii and Kilifi based on false claims of witchcraft on elderly women are deserving of damages to be assessed by the Honour.
e) A declaration that the 1 st , 3 rd and 4 th respondents by their nonfeasance in failing to protect the elderly women in the Counties of Kisii and Kilifi as demanded by the Constitution and statute have no legal or moral legitimacy to hold their respective offices.
f) A declaration that the respondents jointly and severally by their nonfeasance in failing to protect the elderly women in the Counties of Kisii and Kilifi as demanded by the Constitution and statute have committed a crime against humanity due to their non action and toleration of killing of the elderly women in Kisii and Kilifi Counties.
g) A declaration that the 2 nd respondent be ordered to prepare and present before Parliament for the purpose of debating and enacting specific legislation providing clear rights and protection to the elderly of the Republic as envisaged under the provisions of Article 57 of the Constitution and the Bill of Rights of the Constitution.
4. In opposition to the petition, the 1 st – 4 th respondents filed grounds of opposition dated 24 th April 2024 and the 6 th respondent filed a Replying Affidavit dated 29 th April 2024.
Petitioner’s Case
5. The petitioner is a human rights non governmental organization registered in Kenya committed to helping the disadvantaged, poor and marginalized people in Kenya to access justice. The 1 st respondent is the statutory officer in overall command of the National Intelligence Service,a service created under the provisions of Article 242(1) of the Constitution of Kenya. The 2 nd respondent is a constitutional office allowed under the provisions of Article 156 of the Constitution of Kenya, the Principal Legal advisor to the Government of the Republic of Kenya. The 3 rd respondent is a state officer in command of the National Police Service under Article 245(1) of the Constitution with his functions and duties defined under the provisions of Section 10 of the National Police Service Act 2011. The 4 th respondent is a member of the Cabinet of the Government of Kenya responsible of the Ministry of the Interior of the Government of the Republic of Kenya. The 5 th respondent is the County Government of the County of Kisii created under the provisions of Article 176 of the Constitution of Kenya. the 6th respondent is the County Government of the County of Kilifi created under the provisions of Article 176 of the Constitution of Kenya.
6. The 1 st respondent is in charge of the National Intelligence Service a service whose functions are set out in Article 242(2) of the Constitution and specifically set out in Section 5(1) of the National Intelligence Service Act 2012 which are mainly to gather information to assist in the security of the Republic. The petitioner asserts that it is common knowledge that in Kisii and Kilifi regions there continues to be a common cultural practice of witchcraft and superstition which has targeted the elderly members of that society. In one instance there was the Marandi killings that occurred in December 2022 which falls under the jurisdiction of the 5 th respondent where innocent elderly women lost their lives because of actions that were unsubstantiated based on mere rumours and innuendos. The petitioner argues that the killing of the elderly is an archaic and medieval practice that has no place in a civilized society.
7. The petitioner avers that the killers of the elderly allege that the elderly are witches who need to be purged to cleanse the society from bad omens. None of the killers are arrested by the 3 rd respondent nor has the 1 st respondent revealed any steps it has taken to gather intelligence of the matter. Further, the 5 th and 6 th respondents being the devolved governments of their respective counties under the provisions of Article 174(c) of the Constitution they inherit some of the responsibilities and obligations to the people of the county. Thus by their acts and omissions, the respondents have failed the innocent elderly women in Kisii and Kilifi Counties from the attacks and killings from members of the public on allegations that they are witches.
The 1 st – 4 th Respondents’ Case
8. The respondents contend that the petition failed to meet the required threshold for a matter to qualify as a constitutional petition as stipulated in the case of Anarita Karimi Njeru vs Republic where the court laid out the threshold as follows:
‘ We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.’
9. The respondents further contend that the matter does not meet the required threshold of litigation in matters of public interest as set out in the case of Jennifer Shamalla vs LSK & 15 Others [2017] eKLR which stated as follows:
“Public interest litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But the profound need of this tool has been plagued with misuses by persons who file public interest litigation just for the publicity and those vested with political interests. The courts therefore need to keep a check on the cases of action, in order to avoid unnecessary litigation. Vexatious and mischievous litigation must be identified and struck down so that the objectives of public interest litigation are not violated.
10. Further, under the public duty doctrine, the police owe a duty to the public at large and not to individuals specifically and that such a duty of care would impose upon a police service potential liability of almost unlimited scope. Additionally, the respondents argue that the assertion by the petitioner that their failure to act is a crime against humanity is unmerited and not in line with Article 7 of the Rome Statute.
The 6 th Respondent’s Case.
11. The 6 th respondent dislodges the false perception held by the petitioner that it has tolerated the aforesaid killings as alleged in the petition. The 6 th respondent states that it is important to understand that the acts complained of are purely the province of the criminal justice system and its specific role in such a case would be policy based. Further, in a bid to curtail the vice, it has put in place measures including supporting the establishment of safe shelters such as the Mekatilili wa Mwenza Cultural Resource and Rescue Center, Kaya Godoma Rescue Center and Mrima wa Ndege Village, psychosocial support and rehabilitation services to ensure effective protection of victims of the killings, within areas considered raft with the vice.
12. The 6 th respondent asserts that its leadership has been earnest and outspoken when it comes to addressing witch killings during public gatherings and public holiday celebrations. The county’s leadership has been working hand in hand with the County Commissioner and the entire criminal justice system at its disposal to ensure incidences are followed up and addressed. Further, the petition lacks clarity and specificity in defining and explaining how it violated Article 26 and 29(c) & (f) of the Constitution and is therefore an abuse of the court process.
13. The petitioner filed a Further Affidavit dated 13 th June 2025 and states that the petition clearly sets out the provisions of the constitution to be violated, articles 26, 27, 28, 29 and 57, the nature of the violations and the manner in which the respondents’ inaction has contributed to the systematic killings and abuse of elderly women. The petition contains detailed factual allegations supported by witness statements, news reports and affidavits. Further the petition discloses a genuine constitutional grievance framed in the public interest under Article 22(2)(c) of the Constitution which seeks the enforcement of constitutional rights and the performance of duties expressly placed upon public institutions.
14. The petitioner asserts that Article 174(c) of the Constitution places a duty on county governments to enhance the well being of the people, while Article 57 mandates all state organs to take measures to protect the rights of older persons. Thus the 6 th respondent’s attempt to defect responsibility on grounds that law enforcement is a national function fails to appreciate that the petition challenges their failure to take reasonable preventive steps within the devolved framework, including community sensitization, early warning response systems, support for victims and local enforcement coordination.
15. The petitioner argues that while the 6 th respondent claims to have stablished safe shelters, psychosocial services and partnerships with community organizations, it has provided no verifiable data, impact reports, or outcome assessments to demonstrate the effectiveness or reach of those interventions. On the contrary, the killings continue to be reported and documented in multiple sub-counties under their jurisdiction. Further, the claim by the 6 th respondent’s role is merely policy based is constitutionally insufficient as a policy duty that fails to translate into action in the face of ongoing violence renders such policy hollow and unconstitutional.
16. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
17. The petitioner submitted that Article 26(1) of the Constitution guarantees that every person has the right to life and this right imposes both negative and positive obligations on the state. The negative obligation requires the State to refrain from taking life unlawfully while the positive obligation imposes a duty on the State to prevent threats of life and actively protect persons under its jurisdiction. To buttress this point the petitioner placed reliance in the case of Zeitun Juma Hassan (Suing on behalf of Abdul Ramadhan Biringe (deceased) vs Attorney General & 4 Others [2014] eKLR where the court held that the State’s duty to protect life includes enacting appropriate laws and maintaining effective enforcement mechanisms for the prevention and punishment of acts that threaten life.
18. Similar reliance was placed in Kimani vs Attorney General (Civil Appeal 2 of 2019) [2024] KECA 66 (KLR) where the court held as follows:-
The State has an obligation to ensure, protect and promote human rights within its borders. Where the State fails to discharge this duty, it can be held liable for damages for the breach. In order for a claimant to succeed in a claim premised on the failure by the State to discharge its obligation, two elements must be proved. First, there must be conduct consisting of an act or omission, which is attributable to the State under the law. The second is that the conduct must constitute a breach of a legal obligation of the State…The duty to protect enjoins the State to take positive action to protect citizens and other persons within its jurisdiction from violations that may be perpetrated by either state agents, private actors or other states.
19. The court further held:-
The State therefore has an obligation to ensure the enjoyment of human rights. This duty requires the State to prevent violation of human rights by its agents as well as non state actors and to remedy the situation where violations have occurred.
20. The petitioner submitted that the pattern of killings in Kisii and Kilifi counties specifically targeting elderly women based on unsubstantiated allegations of witchcraft constitutes a clear, foreseeable and ongoing threat to life. Despite widespread media reports, civil society alerts and public outcry, the respondents have failed to act. The 1 st and 3 rd respondents, mandated to monitor, prevent and investigate criminal conduct took no meaningful steps to protect victims whereas the 5 th and 6 th respondents failed to intervene through devolved community protection mechanisms.
21. The petitioner further submitted that the violent killings of elderly women accused of witchcraft often involving lynching, burning, mutilation and mob justice constitute egregious violations of the right to security of the person. The said acts are not only inhuman and degrading but were carried out in the open often without prior warning signs and widespread community knowledge. The petitioner argued that the duty of the police and law enforcement agencies to prevent such atrocities is not discretionary, it is constitutional. To buttress this point, reliance was placed on the case of G.N.B & 2 Others vs Attorney General [2018] eKLR where the court held:-
Police officers are under an obligation to protect fundamental rights of citizens and prevent all forms of atrocities. I find that the police subjected all the petitioners to inhuman and degrading treatment which was not justifiable at all under the repealed Constitution.
22. In the said context, the petitioner argued that the failure by the 3 rd respondent to take action to prevent or respond to the said atrocities, despite having the constitutional mandate, capacity and information to do so, amounts to a gross dereliction of duty and a violation of Article 29.
23. The petitioner asserted that Article 10 of the Constitution enshrines the national values and principles of governance which are binding on all State organs, State officers, public officers and all persons. These values include human dignity, equity, social justice, inclusiveness, equality, human rights, non discrimination, protection of the marginalized, good governance, transparency and accountability. The ongoing and unchecked killing of elderly women in Kisii and Kilifi counties, who are among the most marginalized segments of society by virtue of their age, gender, social status and perceived lack of economic utility, starkly undermines the said values. The absence of any meaningful preventive action or investigative response by the State betrays the ideals of human dignity and equality. In such circumstances, the State’s silence becomes complicity and the failure to intervene constitutes a rejection of the very principles upon which the Constitution is anchored.
24. On the issue of damages, the petitioner cited the case of Siewchand Ramanoop vs Attorney General of Trinidad and Tobago, PC Appeal No. 13 of 2004 where the court held that monetary awards for the breach of constitutional rights are not confined to conventional compensatory damages but may include an additional award to reflect the public importance of the right, the gravity of the violation and the need for deterrence. Per Lord Nicholls at paragraphs 18 and 19:-
A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words….An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right has been violated was a constitutional right adds an extra dimension to the wrong…An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach and deter further breaches……
25. Similar reliance was placed in Akusala A. Boniface vs OCS Langata Police Station & 4 others [2018] eKLR where the court awarded both general and constitutional damages for police brutality. The Court emphasized that the State’s failure to protect citizens from cruel and inhuman treatment called for more than just compensation for physical harm; it warranted a constitutional remedy that signalled institutional accountability and respect for human rights.
26. The petitioner argued that the repeated killings of elderly women perpetrated in open and often preceded by threats or public accusations, were foreseeable and preventable. The respondents had the legal mandate operational authority and sufficient notice to act and their failure to do so constitutes a grave constitutional breach, not only of the right to life, but of the rights to dignity, security of person and equal protection under the law. Thus the families of the victims, the survivors and the affected communities are entitled to constitutional redress both to acknowledge the harm suffered and to restore confidence in the State’s commitment to the rule of law and protection of all lives.
27. In light of Article 73 of the Constitution which requires all State officers to exercise authority in a manner that is objective, accountable and responsive to the needs of people, the petitioner argued that the persistent failure by state officers to act in the face of the ongoing killings in Kisii and Kilifi counties undermines public trust and violates Article 73. Article 7 of the Rome Statute defines crimes against humanity to include acts such as murder, torture and persecution when committed as part of a widespread or systematic attack directed against any civilian population which the knowledge of the attack. Thus the targeted killings of elderly women driven by discriminatory stereotypes related to witchcraft and perpetuated through consistent state inaction amount to systematic attacks against a specific civilian group.
28. The petitioner argued that to date Kenya lacks a comprehensive legislative framework specifically tailored to protect the elderly. Thus the 2 nd respondent has a constitutional obligation to initiate legislative processes aimed at giving full effect to Article 57 of the Constitution and to ensure the development of laws and policies that address the unique vulnerabilities and needs of older persons.
The 1 st – 4 th Respondents’ Submissions
29. The respondents argued that the petition is misconceived and does not meet the principles in the case of Anarita Karimi Njeru vs Republic (1979) eKLR where the court held that:-
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.
30. The respondents further argued that the petition does not meet the required threshold of litigation in matters of public interest as it lacks collective focus and generalizes issues about a particular cultural practice without demonstrating how it impacts public welfare on a significant scale. To buttress this point, reliance was placed in the case of Ashok Kumar Pandey vs State of West Bengal [56] where it was held that:-
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of public who approached the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs.
31. Further reliance was placed in the case of Jennifer Shamalla vs LSK & 15 Others [2017] eKLR where the court stated as follows:-
Public interest litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But the profound need of this tool has been plagued with misuses by persons who file public interest litigation just for the publicity and those vested with political interests. The courts therefore need to keep a check on the cases of action, in order to avoid unnecessary litigation. Vexatious and mischievous litigation must be identified and struck down so that the objectives of public interest litigation are not violated.
32. The respondents contended that under the public duty doctrine, the police owe a duty to the public at large and not to individuals specifically and that such a duty of care would impose upon a police service potential liability of almost unlimited scope. Further for a State to be liable for its failure to protect the lives of the elderly at Kisii and Kilifi County, there must have been a special duty activated by information made available to the State or the police; that the elderly were at the risk of being exposed to acts of violence so that the State could in turn take necessary measures to protect the lives and properties of those individuals in question. The respondents were not given prior information acts of violence were expected to be perpetrated in a certain area or against specific persons so that they could organize to offer the required protection to the elderly. Reliance was placed in the case of Charles Murigu Muriithi & 2 Others vs Attorney General [2015] eKLR where the court held:-
The State’s duty to protect those rights would only be activated if it is demonstrated that the police or other Sate agencies had prior information that a section of the members of public in a certain area or specific individuals, were in danger of being subjected to acts of violence against their person or property and that the police, negligently and deliberately failed to act on such information leading to a violation of the rights protected under the Constitution.
33. The respondents contended that the petitioner’s claims are generalized and speculative, lacking specific instances or evidence of harm directly caused by their actions or omissions. For relief to be granted, particularly in cases of alleged failure by public authorities, the petitioner must provide concrete, factual evidence of a duty, breach and resulting harm, which the petitioner has failed to meet this evidentiary burden. Reliance was placed in the case of Kariithi & Another vs Attorney General & Another (Constitutional Petition 30 of 2013) [2021] KEHC 308 (23 November 2021) where Mativo J (as he then was) held:-
Whoever desires any court to give judgment as to any legal right or liability, dependant on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact.
The 6 th Respondent’s Submissions.
34. The 6 th respondent identified two issues for determination as follows: whether the 6 th respondent violated the rights of the elderly women under Article 26 and 29(c) and (f) of the Constitution and whether the remedies sought should be issued. The 6 th respondent submitted that the petitioner did not produce any evidence to show that it was made aware of the longing killings. There was no evidence in the form of an OB report or evidence to show that the matter was reported to the authorities. Additionally, the petitioners did not give a list of the alleged victims’ names or their immediate families other than newspaper clippings. Thus the court has no way of ascertaining the veracity of the reports therein since the same have not been substantiated by any other evidence.
35. The 6 th respondent asserted that the petitioner claims that it must have been aware of such occurrences based on intelligence reports received however the same is based on an assumption. Further, it is not a consumer of intelligence reports and in the instant case, it did not have any prior knowledge that such horrific events were going to take place. Reliance was placed in the case of Charles Murigi Muriithi & 2 Others vs Attorney General (2015) eKLR where the court held that:-
We have also determined that the State’s duty to protect those rights would only be activated if it is demonstrated that the police or other State agencies had prior information that a section of the members of public in a certain area or specific individuals, were in danger of being subjected to acts of violence against their person or property and that the police, negligently and deliberately failed to act on such information leading to a violation of the rights protected under the Constitution.
36. Further reliance was placed in the case of Paul K. Waweru & 4 Others vs AG & 2 Others (2016) eKLR where the court held:-
There can be no doubt that the constitution does place upon the state an obligation to protect all citizens from violent acts which could lead to a violation of their rights. However, the state will only be held liable for actions of non state actors where it is shown that it breached its duty of care. There must be culpability on the part of state agents for liability to ensue.
37. The 6 th respondent further argued that it does not have the responsibility to enforce law and order within its boundaries. To buttress this point, reliance was placed in the case of Florence Amunga Omukanda & Another vs Attorney General & 2 Others (2011) eKLR where the court noted:-
The State protects its citizens through the police service. The police service is the organ responsible for maintaining law and order, preservation of peace, protection of life and property as well as prevention and detection of crime including the apprehension of offenders.
38. The 6 th respondent asserted that under county governments’ legislation and practice, counties do not have a direct mandate to provide security to its citizens. Despite that, the 6 th respondent submitted that it has taken reasonable steps to ensure such unfortunate and horrific events do not occur in the future including formulating policies and educating people on the need to respect and preserve all life.
39. On the issue of damages, the 6 th respondent argued that the petitioner has not given a list of the alleged victims of the killings or the administrators of their estate to whom the damages, if awarded, would be payable to. While an award for damages for constitutional rights violations is permissible, one has to demonstrate and prove on a balance of probabilities that such rights were indeed violated. Reliance was placed in the case of Muriithi & Another vs Attorney General & Another (2023) eKLR where it was held:-
Similarly the petitioners are claiming damages for breach of constitutional rights. True, it is well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the constitution. I accept in principle that constitutional damages as a relief separate and distinct from remedies available under private law is competent because a violation of a constitutional right must of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms. However, a petitioner must demonstrate the breach of rights to qualify for an award of damages for violation of rights.
40. The 6 th resp
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1. The petition dated 24 th November 2023 is supported by the Petitioner’s affidavit in support of even dated and Further Affidavit dated 13 th June 2025.
2. The petition challenges the acts and omissions by the respondents for the failure to protect the elderly women in Kisii and Kilifi Counties from attacks and killings by members of the public on allegations of practicing witchcraft.
3. The Petition thus seeks the following reliefs: -
a) A declaration that by their acts and omissions the 1 st , 3 rd , 4 th , 5 th and 6 th respondents have failed in their duty to provide the victims of the killings in the counties of Kisii and Kilifi based on false claims of witchcraft on elderly women their right to life as allowed under the provisions of Article 26 of the Constitution.
b) A declaration that by their acts and omissions the 1 st , 3 rd , 4 th , 5 th and 6 th respondents have failed in their duty to provide the victims of the killings in the Counties of Kisii and Kilifi based on false claims of witchcraft on elderly women freedom and security of the person as allowed under the provisions of Article 29(c) & (f) of the Constitution.
c) A declaration that by their acts and omissions the 1 st , 3 rd , 4 th , 5 th and 6 th respondents have failed in their duty to adhere to the provisions of Article 10 of the Constitution.
d) A declaration that by their acts and omissions of the 1 st , 3 rd , 4 th , 5 th and 6 th respondents the victims of the killings in the counties of Kisii and Kilifi based on false claims of witchcraft on elderly women are deserving of damages to be assessed by the Honour.
e) A declaration that the 1 st , 3 rd and 4 th respondents by their nonfeasance in failing to protect the elderly women in the Counties of Kisii and Kilifi as demanded by the Constitution and statute have no legal or moral legitimacy to hold their respective offices.
f) A declaration that the respondents jointly and severally by their nonfeasance in failing to protect the elderly women in the Counties of Kisii and Kilifi as demanded by the Constitution and statute have committed a crime against humanity due to their non action and toleration of killing of the elderly women in Kisii and Kilifi Counties.
g) A declaration that the 2 nd respondent be ordered to prepare and present before Parliament for the purpose of debating and enacting specific legislation providing clear rights and protection to the elderly of the Republic as envisaged under the provisions of Article 57 of the Constitution and the Bill of Rights of the Constitution.
4. In opposition to the petition, the 1 st – 4 th respondents filed grounds of opposition dated 24 th April 2024 and the 6 th respondent filed a Replying Affidavit dated 29 th April 2024.
Petitioner’s Case
5. The petitioner is a human rights non governmental organization registered in Kenya committed to helping the disadvantaged, poor and marginalized people in Kenya to access justice. The 1 st respondent is the statutory officer in overall command of the National Intelligence Service,a service created under the provisions of Article 242(1) of the Constitution of Kenya. The 2 nd respondent is a constitutional office allowed under the provisions of Article 156 of the Constitution of Kenya, the Principal Legal advisor to the Government of the Republic of Kenya. The 3 rd respondent is a state officer in command of the National Police Service under Article 245(1) of the Constitution with his functions and duties defined under the provisions of Section 10 of the National Police Service Act 2011. The 4 th respondent is a member of the Cabinet of the Government of Kenya responsible of the Ministry of the Interior of the Government of the Republic of Kenya. The 5 th respondent is the County Government of the County of Kisii created under the provisions of Article 176 of the Constitution of Kenya. the 6th respondent is the County Government of the County of Kilifi created under the provisions of Article 176 of the Constitution of Kenya.
6. The 1 st respondent is in charge of the National Intelligence Service a service whose functions are set out in Article 242(2) of the Constitution and specifically set out in Section 5(1) of the National Intelligence Service Act 2012 which are mainly to gather information to assist in the security of the Republic. The petitioner asserts that it is common knowledge that in Kisii and Kilifi regions there continues to be a common cultural practice of witchcraft and superstition which has targeted the elderly members of that society. In one instance there was the Marandi killings that occurred in December 2022 which falls under the jurisdiction of the 5 th respondent where innocent elderly women lost their lives because of actions that were unsubstantiated based on mere rumours and innuendos. The petitioner argues that the killing of the elderly is an archaic and medieval practice that has no place in a civilized society.
7. The petitioner avers that the killers of the elderly allege that the elderly are witches who need to be purged to cleanse the society from bad omens. None of the killers are arrested by the 3 rd respondent nor has the 1 st respondent revealed any steps it has taken to gather intelligence of the matter. Further, the 5 th and 6 th respondents being the devolved governments of their respective counties under the provisions of Article 174(c) of the Constitution they inherit some of the responsibilities and obligations to the people of the county. Thus by their acts and omissions, the respondents have failed the innocent elderly women in Kisii and Kilifi Counties from the attacks and killings from members of the public on allegations that they are witches.
The 1 st – 4 th Respondents’ Case
8. The respondents contend that the petition failed to meet the required threshold for a matter to qualify as a constitutional petition as stipulated in the case of Anarita Karimi Njeru vs Republic where the court laid out the threshold as follows:
‘ We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.’
9. The respondents further contend that the matter does not meet the required threshold of litigation in matters of public interest as set out in the case of Jennifer Shamalla vs LSK & 15 Others [2017] eKLR which stated as follows:
“Public interest litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But the profound need of this tool has been plagued with misuses by persons who file public interest litigation just for the publicity and those vested with political interests. The courts therefore need to keep a check on the cases of action, in order to avoid unnecessary litigation. Vexatious and mischievous litigation must be identified and struck down so that the objectives of public interest litigation are not violated.
10. Further, under the public duty doctrine, the police owe a duty to the public at large and not to individuals specifically and that such a duty of care would impose upon a police service potential liability of almost unlimited scope. Additionally, the respondents argue that the assertion by the petitioner that their failure to act is a crime against humanity is unmerited and not in line with Article 7 of the Rome Statute.
The 6 th Respondent’s Case.
11. The 6 th respondent dislodges the false perception held by the petitioner that it has tolerated the aforesaid killings as alleged in the petition. The 6 th respondent states that it is important to understand that the acts complained of are purely the province of the criminal justice system and its specific role in such a case would be policy based. Further, in a bid to curtail the vice, it has put in place measures including supporting the establishment of safe shelters such as the Mekatilili wa Mwenza Cultural Resource and Rescue Center, Kaya Godoma Rescue Center and Mrima wa Ndege Village, psychosocial support and rehabilitation services to ensure effective protection of victims of the killings, within areas considered raft with the vice.
12. The 6 th respondent asserts that its leadership has been earnest and outspoken when it comes to addressing witch killings during public gatherings and public holiday celebrations. The county’s leadership has been working hand in hand with the County Commissioner and the entire criminal justice system at its disposal to ensure incidences are followed up and addressed. Further, the petition lacks clarity and specificity in defining and explaining how it violated Article 26 and 29(c) & (f) of the Constitution and is therefore an abuse of the court process.
13. The petitioner filed a Further Affidavit dated 13 th June 2025 and states that the petition clearly sets out the provisions of the constitution to be violated, articles 26, 27, 28, 29 and 57, the nature of the violations and the manner in which the respondents’ inaction has contributed to the systematic killings and abuse of elderly women. The petition contains detailed factual allegations supported by witness statements, news reports and affidavits. Further the petition discloses a genuine constitutional grievance framed in the public interest under Article 22(2)(c) of the Constitution which seeks the enforcement of constitutional rights and the performance of duties expressly placed upon public institutions.
14. The petitioner asserts that Article 174(c) of the Constitution places a duty on county governments to enhance the well being of the people, while Article 57 mandates all state organs to take measures to protect the rights of older persons. Thus the 6 th respondent’s attempt to defect responsibility on grounds that law enforcement is a national function fails to appreciate that the petition challenges their failure to take reasonable preventive steps within the devolved framework, including community sensitization, early warning response systems, support for victims and local enforcement coordination.
15. The petitioner argues that while the 6 th respondent claims to have stablished safe shelters, psychosocial services and partnerships with community organizations, it has provided no verifiable data, impact reports, or outcome assessments to demonstrate the effectiveness or reach of those interventions. On the contrary, the killings continue to be reported and documented in multiple sub-counties under their jurisdiction. Further, the claim by the 6 th respondent’s role is merely policy based is constitutionally insufficient as a policy duty that fails to translate into action in the face of ongoing violence renders such policy hollow and unconstitutional.
16. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
17. The petitioner submitted that Article 26(1) of the Constitution guarantees that every person has the right to life and this right imposes both negative and positive obligations on the state. The negative obligation requires the State to refrain from taking life unlawfully while the positive obligation imposes a duty on the State to prevent threats of life and actively protect persons under its jurisdiction. To buttress this point the petitioner placed reliance in the case of Zeitun Juma Hassan (Suing on behalf of Abdul Ramadhan Biringe (deceased) vs Attorney General & 4 Others [2014] eKLR where the court held that the State’s duty to protect life includes enacting appropriate laws and maintaining effective enforcement mechanisms for the prevention and punishment of acts that threaten life.
18. Similar reliance was placed in Kimani vs Attorney General (Civil Appeal 2 of 2019) [2024] KECA 66 (KLR) where the court held as follows:-
The State has an obligation to ensure, protect and promote human rights within its borders. Where the State fails to discharge this duty, it can be held liable for damages for the breach. In order for a claimant to succeed in a claim premised on the failure by the State to discharge its obligation, two elements must be proved. First, there must be conduct consisting of an act or omission, which is attributable to the State under the law. The second is that the conduct must constitute a breach of a legal obligation of the State…The duty to protect enjoins the State to take positive action to protect citizens and other persons within its jurisdiction from violations that may be perpetrated by either state agents, private actors or other states.
19. The court further held:-
The State therefore has an obligation to ensure the enjoyment of human rights. This duty requires the State to prevent violation of human rights by its agents as well as non state actors and to remedy the situation where violations have occurred.
20. The petitioner submitted that the pattern of killings in Kisii and Kilifi counties specifically targeting elderly women based on unsubstantiated allegations of witchcraft constitutes a clear, foreseeable and ongoing threat to life. Despite widespread media reports, civil society alerts and public outcry, the respondents have failed to act. The 1 st and 3 rd respondents, mandated to monitor, prevent and investigate criminal conduct took no meaningful steps to protect victims whereas the 5 th and 6 th respondents failed to intervene through devolved community protection mechanisms.
21. The petitioner further submitted that the violent killings of elderly women accused of witchcraft often involving lynching, burning, mutilation and mob justice constitute egregious violations of the right to security of the person. The said acts are not only inhuman and degrading but were carried out in the open often without prior warning signs and widespread community knowledge. The petitioner argued that the duty of the police and law enforcement agencies to prevent such atrocities is not discretionary, it is constitutional. To buttress this point, reliance was placed on the case of G.N.B & 2 Others vs Attorney General [2018] eKLR where the court held:-
Police officers are under an obligation to protect fundamental rights of citizens and prevent all forms of atrocities. I find that the police subjected all the petitioners to inhuman and degrading treatment which was not justifiable at all under the repealed Constitution.
22. In the said context, the petitioner argued that the failure by the 3 rd respondent to take action to prevent or respond to the said atrocities, despite having the constitutional mandate, capacity and information to do so, amounts to a gross dereliction of duty and a violation of Article 29.
23. The petitioner asserted that Article 10 of the Constitution enshrines the national values and principles of governance which are binding on all State organs, State officers, public officers and all persons. These values include human dignity, equity, social justice, inclusiveness, equality, human rights, non discrimination, protection of the marginalized, good governance, transparency and accountability. The ongoing and unchecked killing of elderly women in Kisii and Kilifi counties, who are among the most marginalized segments of society by virtue of their age, gender, social status and perceived lack of economic utility, starkly undermines the said values. The absence of any meaningful preventive action or investigative response by the State betrays the ideals of human dignity and equality. In such circumstances, the State’s silence becomes complicity and the failure to intervene constitutes a rejection of the very principles upon which the Constitution is anchored.
24. On the issue of damages, the petitioner cited the case of Siewchand Ramanoop vs Attorney General of Trinidad and Tobago, PC Appeal No. 13 of 2004 where the court held that monetary awards for the breach of constitutional rights are not confined to conventional compensatory damages but may include an additional award to reflect the public importance of the right, the gravity of the violation and the need for deterrence. Per Lord Nicholls at paragraphs 18 and 19:-
A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words….An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right has been violated was a constitutional right adds an extra dimension to the wrong…An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach and deter further breaches……
25. Similar reliance was placed in Akusala A. Boniface vs OCS Langata Police Station & 4 others [2018] eKLR where the court awarded both general and constitutional damages for police brutality. The Court emphasized that the State’s failure to protect citizens from cruel and inhuman treatment called for more than just compensation for physical harm; it warranted a constitutional remedy that signalled institutional accountability and respect for human rights.
26. The petitioner argued that the repeated killings of elderly women perpetrated in open and often preceded by threats or public accusations, were foreseeable and preventable. The respondents had the legal mandate operational authority and sufficient notice to act and their failure to do so constitutes a grave constitutional breach, not only of the right to life, but of the rights to dignity, security of person and equal protection under the law. Thus the families of the victims, the survivors and the affected communities are entitled to constitutional redress both to acknowledge the harm suffered and to restore confidence in the State’s commitment to the rule of law and protection of all lives.
27. In light of Article 73 of the Constitution which requires all State officers to exercise authority in a manner that is objective, accountable and responsive to the needs of people, the petitioner argued that the persistent failure by state officers to act in the face of the ongoing killings in Kisii and Kilifi counties undermines public trust and violates Article 73. Article 7 of the Rome Statute defines crimes against humanity to include acts such as murder, torture and persecution when committed as part of a widespread or systematic attack directed against any civilian population which the knowledge of the attack. Thus the targeted killings of elderly women driven by discriminatory stereotypes related to witchcraft and perpetuated through consistent state inaction amount to systematic attacks against a specific civilian group.
28. The petitioner argued that to date Kenya lacks a comprehensive legislative framework specifically tailored to protect the elderly. Thus the 2 nd respondent has a constitutional obligation to initiate legislative processes aimed at giving full effect to Article 57 of the Constitution and to ensure the development of laws and policies that address the unique vulnerabilities and needs of older persons.
The 1 st – 4 th Respondents’ Submissions
29. The respondents argued that the petition is misconceived and does not meet the principles in the case of Anarita Karimi Njeru vs Republic (1979) eKLR where the court held that:-
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.
30. The respondents further argued that the petition does not meet the required threshold of litigation in matters of public interest as it lacks collective focus and generalizes issues about a particular cultural practice without demonstrating how it impacts public welfare on a significant scale. To buttress this point, reliance was placed in the case of Ashok Kumar Pandey vs State of West Bengal [56] where it was held that:-
Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or member of public who approached the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs.
31. Further reliance was placed in the case of Jennifer Shamalla vs LSK & 15 Others [2017] eKLR where the court stated as follows:-
Public interest litigation was designed to serve the purpose of protecting rights of the public at large through vigilant action by public spirited persons and swift justice. But the profound need of this tool has been plagued with misuses by persons who file public interest litigation just for the publicity and those vested with political interests. The courts therefore need to keep a check on the cases of action, in order to avoid unnecessary litigation. Vexatious and mischievous litigation must be identified and struck down so that the objectives of public interest litigation are not violated.
32. The respondents contended that under the public duty doctrine, the police owe a duty to the public at large and not to individuals specifically and that such a duty of care would impose upon a police service potential liability of almost unlimited scope. Further for a State to be liable for its failure to protect the lives of the elderly at Kisii and Kilifi County, there must have been a special duty activated by information made available to the State or the police; that the elderly were at the risk of being exposed to acts of violence so that the State could in turn take necessary measures to protect the lives and properties of those individuals in question. The respondents were not given prior information acts of violence were expected to be perpetrated in a certain area or against specific persons so that they could organize to offer the required protection to the elderly. Reliance was placed in the case of Charles Murigu Muriithi & 2 Others vs Attorney General [2015] eKLR where the court held:-
The State’s duty to protect those rights would only be activated if it is demonstrated that the police or other Sate agencies had prior information that a section of the members of public in a certain area or specific individuals, were in danger of being subjected to acts of violence against their person or property and that the police, negligently and deliberately failed to act on such information leading to a violation of the rights protected under the Constitution.
33. The respondents contended that the petitioner’s claims are generalized and speculative, lacking specific instances or evidence of harm directly caused by their actions or omissions. For relief to be granted, particularly in cases of alleged failure by public authorities, the petitioner must provide concrete, factual evidence of a duty, breach and resulting harm, which the petitioner has failed to meet this evidentiary burden. Reliance was placed in the case of Kariithi & Another vs Attorney General & Another (Constitutional Petition 30 of 2013) [2021] KEHC 308 (23 November 2021) where Mativo J (as he then was) held:-
Whoever desires any court to give judgment as to any legal right or liability, dependant on the existence of fact which he asserts, must prove that those facts exist. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies on that person who wishes the court to believe its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact.
The 6 th Respondent’s Submissions.
34. The 6 th respondent identified two issues for determination as follows: whether the 6 th respondent violated the rights of the elderly women under Article 26 and 29(c) and (f) of the Constitution and whether the remedies sought should be issued. The 6 th respondent submitted that the petitioner did not produce any evidence to show that it was made aware of the longing killings. There was no evidence in the form of an OB report or evidence to show that the matter was reported to the authorities. Additionally, the petitioners did not give a list of the alleged victims’ names or their immediate families other than newspaper clippings. Thus the court has no way of ascertaining the veracity of the reports therein since the same have not been substantiated by any other evidence.
35. The 6 th respondent asserted that the petitioner claims that it must have been aware of such occurrences based on intelligence reports received however the same is based on an assumption. Further, it is not a consumer of intelligence reports and in the instant case, it did not have any prior knowledge that such horrific events were going to take place. Reliance was placed in the case of Charles Murigi Muriithi & 2 Others vs Attorney General (2015) eKLR where the court held that:-
We have also determined that the State’s duty to protect those rights would only be activated if it is demonstrated that the police or other State agencies had prior information that a section of the members of public in a certain area or specific individuals, were in danger of being subjected to acts of violence against their person or property and that the police, negligently and deliberately failed to act on such information leading to a violation of the rights protected under the Constitution.
36. Further reliance was placed in the case of Paul K. Waweru & 4 Others vs AG & 2 Others (2016) eKLR where the court held:-
There can be no doubt that the constitution does place upon the state an obligation to protect all citizens from violent acts which could lead to a violation of their rights. However, the state will only be held liable for actions of non state actors where it is shown that it breached its duty of care. There must be culpability on the part of state agents for liability to ensue.
37. The 6 th respondent further argued that it does not have the responsibility to enforce law and order within its boundaries. To buttress this point, reliance was placed in the case of Florence Amunga Omukanda & Another vs Attorney General & 2 Others (2011) eKLR where the court noted:-
The State protects its citizens through the police service. The police service is the organ responsible for maintaining law and order, preservation of peace, protection of life and property as well as prevention and detection of crime including the apprehension of offenders.
38. The 6 th respondent asserted that under county governments’ legislation and practice, counties do not have a direct mandate to provide security to its citizens. Despite that, the 6 th respondent submitted that it has taken reasonable steps to ensure such unfortunate and horrific events do not occur in the future including formulating policies and educating people on the need to respect and preserve all life.
39. On the issue of damages, the 6 th respondent argued that the petitioner has not given a list of the alleged victims of the killings or the administrators of their estate to whom the damages, if awarded, would be payable to. While an award for damages for constitutional rights violations is permissible, one has to demonstrate and prove on a balance of probabilities that such rights were indeed violated. Reliance was placed in the case of Muriithi & Another vs Attorney General & Another (2023) eKLR where it was held:-
Similarly the petitioners are claiming damages for breach of constitutional rights. True, it is well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the constitution. I accept in principle that constitutional damages as a relief separate and distinct from remedies available under private law is competent because a violation of a constitutional right must of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms. However, a petitioner must demonstrate the breach of rights to qualify for an award of damages for violation of rights.
40. The 6 th resp
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