2 | Page
Judgment
Introduction
1. The Petitioner, Peter Makori, describes himself in the amended petition dated 4.11.2021 as a journalist who worked as a correspondent with The Standard Newspaper, Kenya Television Network and later as a freelance journalist with Reuters, BBC Radio and the Associated Press. He states that, because of his investigative journalism and reporting on governance, human rights and political matters, State agents and persons aligned to powerful political actors repeatedly harassed, arrested, detained and prosecuted him.
2. The Petition is framed as an historical constitutional claim. The consolidated statement dated 18th February 2024 pleads a chronology of alleged violations from 1994 to 2003. However, during his oral testimony on 24th October 2024, the Petitioner expressly narrowed the present claim to alleged violations that occurred between 1994 and 1996. He accepted that the matters relating to 2003 and some other incidents had been the subject of prior compensation.
3. The Respondents opposed the Petition through the replying affidavit sworn by Mr Charles Keses, then County Police Commandant, Kisii. Their position is that the Petition is time-barred, res judicata, an abuse of process, lacking in reasonable constitutional precision, and unsupported by tangible evidence. The Petitioner responded by way of a supplementary affidavit, maintaining that the present claim concerns separate historical violations that were neither adjudicated upon nor was he compensated for the same .
4. The task of the Court is not to minimise the gravity of the allegations. Arbitrary detention, torture, inhuman treatment and suppression of journalistic freedom are serious constitutional matters. The Court must, however, determine them on the pleadings and evidence before it, and in accordance with the legal principles regulating historical constitutional claims.
The Petitioner's Case
5. The Petitioner states that on 16th March 1994 he was arrested and detained overnight at Nakuru Central Police Station after reporting in The Standard newspaper on the Rift Valley tribal clashes. He says he was charged with subversive activities in Nakuru Chief Magistrate's Criminal Case No. 1308 of 1994, remanded for about 14 days, detained in poor prison conditions and denied medication. He further states that the charge of subversion was dropped and replaced with sedition, before the case was withdrawn for want of sufficient evidence after about eight months.
6. He further states that in May 1994 he was arrested and arraigned before the Kisii Chief Magistrate's Court in Criminal Case No. 2222 of 1994 for publishing alarming reports. According to him, that prosecution related to a newspaper article concerning a statement attributed to the then Kisii District Commissioner. He says the court required him to report to the Kisii Criminal Investigations Office twice daily, seven days a week, for six months, and that the case was eventually withdrawn for lack of sufficient evidence.
7. The Petitioner also pleads that on 14th April 1995 he was arrested after a documentary on deforestation in Kisii was aired on Kenya Television Network. He says he had earlier been ambushed and beaten by suspected hired persons, went to report the attack at Kisii Police Station, but was instead arrested on the orders of the officer commanding the station and held without access to his lawyers. He says he was then charged in Kisii Chief Magistrate's Criminal Case No. 1660 of 1995 for allegedly defaming Dr Hezron Manduku, then an Assistant Minister.
8. The Petitioner alleges that on 11th August 1996, while attending a meeting addressed by Mr Simeon Nyachae and Mr Andrew Ligale at Keumbu, persons he describes as 'amachuma' assaulted him after adverse remarks by a Cabinet Minister. He states that police officers at the meeting failed to protect him and instead arrested him and he was taken to Keroka Police Station where he was detained overnight without medical attention.
9. He further pleads that in October and November 1996 he was pursued by police officers seeking to arrest him on unspecified allegations, whereupon he successfully applied for anticipatory bail before the Nairobi Chief Magistrate's Court in Miscellaneous Application No. 31 of 1996. He says that upon his return to Kisii, he was arrested, taken before the Kisii Chief Magistrate's Court, and charged with criminal defamation of three Government ministers in Criminal Case No. 3287 of 1996, which was later consolidated with Criminal Case No. 2874 of 1996.
10. He states that the 1996 criminal defamation case dragged on for about one year and was terminated for want of sufficient evidence. He contends that the above incidents violated his rights to liberty, dignity, freedom from torture and cruel, inhuman or degrading treatment, freedom of expression, fair treatment upon arrest, and policing consistent with constitutional values.
11. The Petitioner also narrated events in 1998, 2000 and 2003. He pleaded that after a criminal case concerning possession of kangara, he sued the Government in Kisii Chief Magistrate's Civil Case No. 589 of 1999 and was awarded Kshs. 1,000,000 for malicious prosecution, which was paid in 2006. He further pleaded that after another detention in 2000, he filed Kisii Chief Magistrate's Civil Case No. 574 of 2003 and was awarded Kshs. 350,000 for false imprisonment, which was paid in 2007.
12. As regards the 2003 arrest, detention, alleged torture, mock execution and murder charge, the Petitioner stated that he lodged a complaint with the Kenya National Commission on Human Rights. He pleaded that the Commission constituted a quasi-judicial tribunal and awarded him compensation of Kshs. 5,053,671. In his oral evidence, he stated that the 2003 claim is not before this Court.
13. In the supplementary affidavit, the Petitioner states that the KNCHR process did not examine the 1994, 1995 and 1996 arrests and prosecutions, and that the Commission ultimately focused on the 2003 arrest, torture and murder prosecution. He further states that the KNCHR lacked the mandate to issue the constitutional declarations now sought from this Court.
14. The Petitioner explains the delay on the basis that he remained under threat, that two of his witnesses were allegedly killed when he returned to Kenya in 2006 to testify before the KNCHR, that he was moved to a secret location and assisted to leave Kenya, and that in 2007 a senior security official allegedly warned him to leave Kenya for his safety. He states that he fled to the United States and was granted political asylum.
The Respondents' Case
15. The Respondents contend that the Petition is a disguised tort claim for malicious prosecution and false imprisonment, brought as a constitutional petition to circumvent the Limitation of Actions Act. They argue that the events complained of occurred between 1994 and 2003 and that a delay of over two decades is inordinate, unexplained and prejudicial.
16. They also plead res judicata and mootness on the basis of the KNCHR Complaints Hearing Panel decision dated 6th September 2006, which was subsequently adopted as a judgment of the High Court in Nairobi Miscellaneous Application No. 943 of 2007. According to the Respondents, the Petitioner raised before that panel matters dating from 1994 to 2003 and was awarded Kshs. 5,053,671.
17. The Respondents further depone that the Petitioner obtained a decree on 6th June 2012 for Kshs. 8,541,119.30, inclusive of interest, filed Kisii High Court Judicial Review No. 25 of 2014 to compel payment, and that by March 2020 the amount allegedly stood at Kshs. 12,411,493. They aver that the Petitioner executed a discharge voucher and that the amount was released through his advocate.
18. The Petitioner denies that he is seeking enforcement of the KNCHR award. He says he has disclosed all prior proceedings and compensation, and that the present Petition is confined to separate incidents of violation for which no court, tribunal, or quasi-judicial body has awarded compensation.
Evidence at the Hearing
19. The Petitioner testified as PW1 on 24th October 2024. He adopted his amended petition, supporting affidavit, supplementary affidavit, consolidated statement and documents as his evidence. He stated that the Petition concerned human rights violations perpetrated against him by authorities in Kenya and that he sought declarations and compensation.
20. On cross-examination, the Petitioner confirmed that the alleged violations in this Petition were from 1994, 1995 and 1996. He stated that he was limiting himself to violations between 1994 and 1996 and that what he had stated concerning 2003 had been partially compensated. He accepted that he lodged a complaint with the Kenya National Commission on Human Rights in 2005 and that the Commission's decision was delivered in 2006. He did not appeal or seek review of that decision.
21. He further admittted that, if the complaints between 1994 and 1996 were before the Commission or could have been presented to it, he had an opportunity to pursue them there. He nonetheless maintained in re-examination that the Commission ultimately addressed only the 2003 violations and that the 1994 to 1996 violations were neither determined nor compensated.
22. The Petitioner admitted that he did not have police documents to show that he was arrested on 16th March 1994, in May 1994, on 14th April 1995 or on 14th November 1996. He also conceded that, in respect of the 1994 to 1996 claims identified in paragraph 54 of the consolidated statement, he had not filed the relevant criminal proceedings or court files showing the charges, the evidence tendered, or the manner in which the criminal cases were terminated.
23. He was questioned on the documents marked PM-1, PM-2, PM-3, PM-4, PM-5 and PM-6. He said that he did not have the originals of some letters, that one letter did not expressly identify him as the accused person, that another letter was not copied to him and he was not its maker, and that the newspaper cuttings were photocopies without a certification. He further agreed that the bond pending arrest did not by itself confirm that he was later arrested.
24. On medical evidence, the Petitioner was referred to a letter dated 18th April 2011 from Dr Allan Smith and to a later medical document. He accepted that the medical assessment was prepared many years after the events complained of and that he did not have contemporaneous treatment records for the 1994 to 1996 period. He also admitted that the photographs relied upon did not show when they were taken, which device was used, or a certificate from the maker.
25. The Petitioner explained the delay by stating that he was on the run and that it only became safe for him to sue in 2017 after the key political actors behind his persecution had either died, retired or lost influence. He stated that he fled into exile and obtained political asylum in the United States of America. On cross-examination, however, he said that he had not filed his asylum application documents and that he had not received threats or violations from the Government after the promulgation of the 2010 Constitution. He also acknowledged that he lives in the United States and occasionally comes to Kenya.
26. The KNCHR decision produced in the record shows that the complaint before the Panel originated from letters or petitions submitted on 20th December 2003 and 27th May 2004, when the Petitioner complained of torture, wrongful confinement and malicious prosecution for murder. The issues framed by the Panel were whether the Petitioner had been arrested and detained on or about July 2003, whether he had been tortured after that arrest, whether the murder prosecution was malicious, and what damages were payable.
27. Although the Petitioner gave the KNCHR Panel a background of earlier arrests and prosecutions from 1994, the Panel expressly stated in its decision that its concern was the 2003 case and not the earlier cases. The Panel awarded damages for the 2003 malicious prosecution and torture, together with special damages.
Parties' Submissions
28. The Court has considered the parties' written submissions and the authorities cited. The Petitioner submits that the Respondents filed a replying affidavit but elected not to call the deponent or any other witness. Relying on Rono v Lomsons Enterprises (Civil Case 5 of 2019) [2024] KEHC 6249 (KLR), he argues that his oral testimony and documents were therefore uncontroverted and that the factual allegations of arbitrary arrest, torture, unlawful detention and malicious prosecution should be taken as proved.
29. On limitation, the Petitioner relies on Monica Wangu Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR) for the proposition that constitutional claims founded on violation of rights and freedoms are not subject to ordinary limitation statutes. He also relies on Kisilu Mutua v Attorney General [2017] eKLR and submits that the Court should take judicial notice of the political conditions prevailing during the period of the alleged violations, the intimidation of journalists and the difficulty of suing the State during the former constitutional order.
30. On res judicata, the Petitioner submits that the Kenya National Commission on Human Rights decision of 6th September 2006 dealt only with the 2003 arrest, alleged torture and malicious prosecution for murder. He points to the issues framed by the Commission, which concerned the July 2003 arrest and detention, assault or torture after that arrest, the murder prosecution and damages. He argues that the references to earlier arrests from 1994 were merely illustrative background and not matters determined by the Panel.
31. On the merits, the Petitioner submits that he met the pleading threshold in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. He further submits that although the pleaded violations occurred before the 2010 Constitution, the rights invoked have equivalents under sections 70, 72, 74 and 79 of the former Constitution, and that the Court should apply those corresponding provisions as guided by Monica Wangu Wamwere.
32. The Petitioner submits that the alleged physical assaults, detention without medical attention, incarceration, psychological injury and later medical reports establish torture and cruel, inhuman or degrading treatment. He also submits that the repeated prosecutions arising from his journalistic work met the test for malicious prosecution as laid down in the case of George Masinde Murunga v Attorney General [1979] KLR 138, Attorney General v Peter Kirimi Mbogo & another [2021] eKLR, Mbowa v East Mengo District Administration [1972] EA 352 and Kagane & others v Attorney General [1969] EA 643.
33. On reliefs, the Petitioner seeks a total award of Kshs. 24,000,000 made up of Kshs. 10,000,000 for torture, Kshs. 10,000,000 for malicious prosecution and aggravated damages, and Kshs. 4,000,000 for breaches of sections 70(a), 72, 73, 74 and 79 of the former Constitution and their equivalent provisions in the 2010 Constitution. He also seeks interest from the date of filing and costs.
34. The Respondents submit that the replying affidavit sworn by Charles Kasis is evidence properly before the Court and that, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, a constitutional petition may be determined on affidavit evidence, oral evidence, written submissions or such other mode as the Court directs. They rely on Daniel Kibet Mutai & 9 others v Attorney General to submit that affidavit evidence is legally admissible evidence and that their decision not to call oral evidence did not shift the burden of proof.
35. The Respondents submit that Rono v Lomsons Enterprises is distinguishable because it constituted an ordinary civil claim, while the present proceedings remains governed by the constitutional pleading and proof framework. They argue that the Petitioner retained the burden to prove the specific violations pleaded, and that a replying affidavit denying the allegations was sufficient to join issue on the disputed facts.
36. On delay, the Respondents submit that the Petition was filed about 23 years after the alleged 1994 to 1996 incidents. They argue that the delay remains inordinate, unexplained, and prejudicial to their right to a fair hearing because most of the alleged actors have died, retired, or are otherwise unavailable, and the relevant police, court, and medical records are no longer reasonably available. They rely, among other authorities, on Peter M. Kariuki v Attorney General, Daniel Kibet Mutai & 9 others v Attorney General, Wellington Nzioka Kioko v Attorney General [2018] eKLR and James Kanyiita Nderitu v Attorney General & another [2019] eKLR.
37. The Respondents further submit that the Petition offends the doctrine of constitutional avoidance because the pleaded complaints are, in substance, ordinary claims for malicious prosecution, false imprisonment and assault presented as a constitutional petition to avoid limitation statutes. They also rely on Zehrabanu Janmohammed & another v Nathaniel K. Lagat & 4 others to submit that the proposition that every constitutional petition automatically ousts limitation statutes is not absolute and must be applied on a case-by-case basis.
38. On res judicata, the Respondents submit that the Petitioner placed the history of arrests and prosecutions from 1994 before the KNCHR Panel, obtained an award of Kshs. 5,053,671, had that award adopted as an order of the High Court in Nairobi Miscellaneous Application No. 943 of 2007 and later pursued enforcement through judicial review proceedings. They argue that the present Petition re-litigates matters that were, or ought to have been, dealt with in that process.
39. Finally, the Respondents submit that the Petitioner has not produced the primary records required to prove the five incidents now relied upon. They point to the absence of charge sheets, criminal proceedings, withdrawal orders, OB entries, medical treatment notes, P3 forms and witnesses to the alleged assaults or detention. They submit that the later medical reports do not link the claimed injuries to the 1994 to 1996 incidents and thus no declaration or damages can issue on the same .
Issues for Determination
40. Having considered the pleadings, the consolidated statement, the supplementary and replying affidavits, the KNCHR decision, the oral evidence, the written submissions and the authorities cited, the issues for determination are:
a. whether the Petition is barred by res judicata, previous compensation, delay or laches;
b. what effect, if any, follows from the Respondents' failure to call oral evidence;
c. whether the Petitioner has proved the alleged constitutional violations arising from the 1994 to 1996 incidents; and
d. whether the Petitioner is entitled to the declarations, damages and other reliefs sought.
Applicable Legal Principles
41. A party alleging violation of constitutional rights must set out the right alleged to have been violated, the facts constituting the violation and the manner in which the right was violated with reasonable precision. This principle, held in the case of in Anarita Karimi Njeru v Republic [1979] eKLR and restated by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, is not a demand for technical perfection. It is a requirement of fair notice, proof and adjudication.
42. The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act. It bars a court from trying a matter that was directly and substantially in issue in a former suit or proceeding between the same parties, or parties claiming under them, where the issue was heard and finally determined by a court or tribunal of competent jurisdiction. The doctrine serves the public interest in finality, but it applies only to matters actually and substantially determined, or matters which properly ought to have been raised in the earlier proceedings.
43. The legal burden of proof stays on the party who alleges. Sections 107, 108 and 109 of the Evidence Act place that burden on the Petitioner. The standard is proof on a balance of probabilities. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal emphasised that the trial court must examine the evidence and satisfy itself that the claim has been proved. The standard does not change merely because the other side has not called rebuttal evidence.
44. The Court agrees with the proposition that an affidavit is evidence not a pleading . The Mutunga Rules permit constitutional petitions to be heard by affidavit evidence, oral evidence, written submissions or such other mode as the Court directs. The Respondents' failure to call the deponent for oral evidence therefore does not, by itself, expunge the replying affidavit from the record or convert the Petition into an undefended claim. It may affect the effect of the Respondents' factual denial, but it does not relieve the Petitioner of the burden to prove the pleaded violations.
Res Judicata, Previous Compensation and Delay
45. The incidents now pressed by the Petitioner occurred between 1994 and 1996. The Petitioner's own evidence is that the Petition was filed in 2017. By then, between 21 and 23 years had elapsed from the incidents specifically retained in the claim, and more than seven years had elapsed after the promulgation of the Constitution of Kenya, 2010.
46. I first address res judicata. The Respondents' argument is founded on the KNCHR decision and its later adoption by the High Court. The record shows that the Petitioner presented to the KNCHR Panel a history of arrests and prosecutions from 1994, 1996, 1998, 2002, and 2003. However, the issues framed by the Panel concerned the July 2003 arrest and detention, torture after that arrest, malicious prosecution for murder, and the damages arising therefrom.
47. It is therefore true that the Petitioner narrated earlier arrests and prosecutions as part of the background before the KNCHR Panel. It is equally true that the Panel expressly stated that its concern was the 2003 case and not the earlier cases. The evidence before this Court does not show that the 1994 to 1996 incidents were expressly adjudicated on their merits by the Panel.
48. However, the prior proceedings remain material. The Petitioner admitted that he filed civil claims against the Government arising from other incidents and obtained compensation in 2006 and 2007. He also lodged a complaint with the Kenya National Commission on Human Rights in 2005, appeared before it and received a decision in 2006. By then, he was aware of, and able to narrate, the 1994 to 1996 incidents.
49. If the Petitioner's position was that the Commission failed to determine the 1994 to 1996 aspects despite their having been placed before it, that was a matter he could have pursued without unreasonable delay by appeal, review or fresh proceedings. He did not do so. To the extent that the present Petition seeks to reopen matters that were part of the wider historical complaint and could have been pursued in earlier proceedings, it offends the principle of conclusiveness and is subject to constructive res judicata or, at the very least, amounts to an abuse of process.
50. The Court also accepts that the events complained of occurred before the promulgation of the Constitution of Kenya, 2010. That does not place them beyond constitutional scrutiny. The former Constitution protected, among others, personal liberty, protection of the law, freedom from torture and inhuman treatment, and freedom of expression under sections 70, 72, 74 and 79. The current Articles relied upon must therefore be understood, where appropriate, by reference to their equivalents in the former constitutional order.
51. In any event, on the issue of delay, it is now settled that while the Constitution does not prescribe an ordinary limitation period for enforcement of fundamental rights, the absence of a specific limitation period is not a licence to file claims after unreasonable delay without explanation. In Monica Wangu Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), the Supreme Court affirmed that there is no ordinary limitation period for claims founded on violation of fundamental rights and freedoms, but also held that whether a claim has been brought within a reasonable time is to be determined case by case, taking into account the explanation for delay and the circumstances of the particular violation.
52. The Supreme Court's later decision in Zehrabanu Janmohammed & another v Nathaniel K. Lagat & 4 others similarly cautions that the proposition that a constitutional petition automatically ousts limitation statutes is not absolute. In this case, however, it is unnecessary to determine the Petition solely on statutory limitation. The decisive questions are whether the delay has been satisfactorily explained, whether the delay has caused prejudice, and whether the allegations have been proved.
53. The Court has also considered the transitional justice approach in Kisilu Mutua v Attorney General [2017] eKLR. Courts must remain sensitive to the historical background in which past violations occurred, especially where State power allegedly made timely litigation difficult or dangerous. At the same time, a litigant must give a sufficient explanation for the particular delay in the particular case, especially where the litigant was able to pursue other proceedings against the State during the intervening period.
54. The reason for the rule on delay is practical and constitutional. With the passage of time, files may be lost, witnesses may die, memories might fade, and public institutions may be placed in an unfair position in attempting to answer allegations whose primary records are no longer reasonably available. The Court therefore considers the length of delay, the explanation offered, the conduct of the parties, prejudice, and the nature of the alleged violation.
55. The doctrine of constitutional avoidance is not a bar to every petition that mentions facts capable of founding a tort claim. A malicious prosecution, unlawful detention or assault claim may, on proper facts, also disclose a violation of constitutional rights. The doctrine, however, cautions that a constitutional petition should not be used to evade ordinary limitation rules or to obtain public law remedies where the dispute is, in substance and proof, an ordinary private law claim unsupported by constitutional facts.
56. Where the pleaded claim is in substance one of malicious prosecution, the Petitioner must prove the settled elements stated in George Masinde Murunga v Attorney General [1979] KLR 138 and Mbowa v East Mengo District Administration [1972] EA 352. He must show that the prosecution was instituted by the defendant or by persons for whose acts the defendant is responsible, that it terminated in his favour, that it was instituted without reasonable and probable cause, and that it was actuated by malice. The elements must unite; termination of a criminal case in favour of an accused person is not, without more, proof of malicious prosecution.
57. Where a violation is proved, Article 23(3) empowers the Court to grant appropriate relief, including declarations and compensation. In Gitobu Imanyara, the Court of Appeal held that constitutional damages are discretionary public law remedies. Their primary purpose is not punitive or merely compensatory, but to vindicate rights and restrain future infringements. The remedy must be appropriate and just in the circumstances of the case.The question of delay is decisive. The Petitioner explained that he feared for his life, that he was in exile, and that it became safe to sue only in 2017 when the relevant political actors had died, retired or ceased to wield influence. The Court has considered that explanation sympathetically. It is not fanciful that journalists and human rights defenders suffered repression in the period in question.
58. The Court also recognises that historical violations may not always be litigated promptly, especially where State power was itself the alleged source of fear, as stated in Monica Wangu Wamwere and Kisilu Mutua. Those authorities, however, do not remove the need to consider delay on a case-by-case basis. The explanation offered must be tested against the evidence.
59. In this case, the Petitioner was able to pursue other claims against the Government during the intervening period. He filed civil proceedings, lodged the KNCHR complaint, testified before the Commission, obtained compensation and later pursued enforcement. He accepted that he had not filed his asylum documents and that he had not received threats or violations from the Government after the promulgation of the 2010 Constitution. The explanation therefore does not adequately cover the period after the KNCHR decision in 2006, the civil compensation payments in 2006 and 2007, or the period after the 2010 Constitution.
60. The Respondents submitted that the delay prejudiced them because they cannot trace the relevant records due to the effluxion of time. The Petitioner also conceded that most witnesses had passed on, that several alleged perpetrators are dead, and that the police records, criminal files, medical records, occurrence book entries, charge sheets and proceedings that would have assisted the Court are not before it.
61. The promulgation of the 2010 Constitution did not, by itself, revive every historical
[...truncated]
Judgment
Introduction
1. The Petitioner, Peter Makori, describes himself in the amended petition dated 4.11.2021 as a journalist who worked as a correspondent with The Standard Newspaper, Kenya Television Network and later as a freelance journalist with Reuters, BBC Radio and the Associated Press. He states that, because of his investigative journalism and reporting on governance, human rights and political matters, State agents and persons aligned to powerful political actors repeatedly harassed, arrested, detained and prosecuted him.
2. The Petition is framed as an historical constitutional claim. The consolidated statement dated 18th February 2024 pleads a chronology of alleged violations from 1994 to 2003. However, during his oral testimony on 24th October 2024, the Petitioner expressly narrowed the present claim to alleged violations that occurred between 1994 and 1996. He accepted that the matters relating to 2003 and some other incidents had been the subject of prior compensation.
3. The Respondents opposed the Petition through the replying affidavit sworn by Mr Charles Keses, then County Police Commandant, Kisii. Their position is that the Petition is time-barred, res judicata, an abuse of process, lacking in reasonable constitutional precision, and unsupported by tangible evidence. The Petitioner responded by way of a supplementary affidavit, maintaining that the present claim concerns separate historical violations that were neither adjudicated upon nor was he compensated for the same .
4. The task of the Court is not to minimise the gravity of the allegations. Arbitrary detention, torture, inhuman treatment and suppression of journalistic freedom are serious constitutional matters. The Court must, however, determine them on the pleadings and evidence before it, and in accordance with the legal principles regulating historical constitutional claims.
The Petitioner's Case
5. The Petitioner states that on 16th March 1994 he was arrested and detained overnight at Nakuru Central Police Station after reporting in The Standard newspaper on the Rift Valley tribal clashes. He says he was charged with subversive activities in Nakuru Chief Magistrate's Criminal Case No. 1308 of 1994, remanded for about 14 days, detained in poor prison conditions and denied medication. He further states that the charge of subversion was dropped and replaced with sedition, before the case was withdrawn for want of sufficient evidence after about eight months.
6. He further states that in May 1994 he was arrested and arraigned before the Kisii Chief Magistrate's Court in Criminal Case No. 2222 of 1994 for publishing alarming reports. According to him, that prosecution related to a newspaper article concerning a statement attributed to the then Kisii District Commissioner. He says the court required him to report to the Kisii Criminal Investigations Office twice daily, seven days a week, for six months, and that the case was eventually withdrawn for lack of sufficient evidence.
7. The Petitioner also pleads that on 14th April 1995 he was arrested after a documentary on deforestation in Kisii was aired on Kenya Television Network. He says he had earlier been ambushed and beaten by suspected hired persons, went to report the attack at Kisii Police Station, but was instead arrested on the orders of the officer commanding the station and held without access to his lawyers. He says he was then charged in Kisii Chief Magistrate's Criminal Case No. 1660 of 1995 for allegedly defaming Dr Hezron Manduku, then an Assistant Minister.
8. The Petitioner alleges that on 11th August 1996, while attending a meeting addressed by Mr Simeon Nyachae and Mr Andrew Ligale at Keumbu, persons he describes as 'amachuma' assaulted him after adverse remarks by a Cabinet Minister. He states that police officers at the meeting failed to protect him and instead arrested him and he was taken to Keroka Police Station where he was detained overnight without medical attention.
9. He further pleads that in October and November 1996 he was pursued by police officers seeking to arrest him on unspecified allegations, whereupon he successfully applied for anticipatory bail before the Nairobi Chief Magistrate's Court in Miscellaneous Application No. 31 of 1996. He says that upon his return to Kisii, he was arrested, taken before the Kisii Chief Magistrate's Court, and charged with criminal defamation of three Government ministers in Criminal Case No. 3287 of 1996, which was later consolidated with Criminal Case No. 2874 of 1996.
10. He states that the 1996 criminal defamation case dragged on for about one year and was terminated for want of sufficient evidence. He contends that the above incidents violated his rights to liberty, dignity, freedom from torture and cruel, inhuman or degrading treatment, freedom of expression, fair treatment upon arrest, and policing consistent with constitutional values.
11. The Petitioner also narrated events in 1998, 2000 and 2003. He pleaded that after a criminal case concerning possession of kangara, he sued the Government in Kisii Chief Magistrate's Civil Case No. 589 of 1999 and was awarded Kshs. 1,000,000 for malicious prosecution, which was paid in 2006. He further pleaded that after another detention in 2000, he filed Kisii Chief Magistrate's Civil Case No. 574 of 2003 and was awarded Kshs. 350,000 for false imprisonment, which was paid in 2007.
12. As regards the 2003 arrest, detention, alleged torture, mock execution and murder charge, the Petitioner stated that he lodged a complaint with the Kenya National Commission on Human Rights. He pleaded that the Commission constituted a quasi-judicial tribunal and awarded him compensation of Kshs. 5,053,671. In his oral evidence, he stated that the 2003 claim is not before this Court.
13. In the supplementary affidavit, the Petitioner states that the KNCHR process did not examine the 1994, 1995 and 1996 arrests and prosecutions, and that the Commission ultimately focused on the 2003 arrest, torture and murder prosecution. He further states that the KNCHR lacked the mandate to issue the constitutional declarations now sought from this Court.
14. The Petitioner explains the delay on the basis that he remained under threat, that two of his witnesses were allegedly killed when he returned to Kenya in 2006 to testify before the KNCHR, that he was moved to a secret location and assisted to leave Kenya, and that in 2007 a senior security official allegedly warned him to leave Kenya for his safety. He states that he fled to the United States and was granted political asylum.
The Respondents' Case
15. The Respondents contend that the Petition is a disguised tort claim for malicious prosecution and false imprisonment, brought as a constitutional petition to circumvent the Limitation of Actions Act. They argue that the events complained of occurred between 1994 and 2003 and that a delay of over two decades is inordinate, unexplained and prejudicial.
16. They also plead res judicata and mootness on the basis of the KNCHR Complaints Hearing Panel decision dated 6th September 2006, which was subsequently adopted as a judgment of the High Court in Nairobi Miscellaneous Application No. 943 of 2007. According to the Respondents, the Petitioner raised before that panel matters dating from 1994 to 2003 and was awarded Kshs. 5,053,671.
17. The Respondents further depone that the Petitioner obtained a decree on 6th June 2012 for Kshs. 8,541,119.30, inclusive of interest, filed Kisii High Court Judicial Review No. 25 of 2014 to compel payment, and that by March 2020 the amount allegedly stood at Kshs. 12,411,493. They aver that the Petitioner executed a discharge voucher and that the amount was released through his advocate.
18. The Petitioner denies that he is seeking enforcement of the KNCHR award. He says he has disclosed all prior proceedings and compensation, and that the present Petition is confined to separate incidents of violation for which no court, tribunal, or quasi-judicial body has awarded compensation.
Evidence at the Hearing
19. The Petitioner testified as PW1 on 24th October 2024. He adopted his amended petition, supporting affidavit, supplementary affidavit, consolidated statement and documents as his evidence. He stated that the Petition concerned human rights violations perpetrated against him by authorities in Kenya and that he sought declarations and compensation.
20. On cross-examination, the Petitioner confirmed that the alleged violations in this Petition were from 1994, 1995 and 1996. He stated that he was limiting himself to violations between 1994 and 1996 and that what he had stated concerning 2003 had been partially compensated. He accepted that he lodged a complaint with the Kenya National Commission on Human Rights in 2005 and that the Commission's decision was delivered in 2006. He did not appeal or seek review of that decision.
21. He further admittted that, if the complaints between 1994 and 1996 were before the Commission or could have been presented to it, he had an opportunity to pursue them there. He nonetheless maintained in re-examination that the Commission ultimately addressed only the 2003 violations and that the 1994 to 1996 violations were neither determined nor compensated.
22. The Petitioner admitted that he did not have police documents to show that he was arrested on 16th March 1994, in May 1994, on 14th April 1995 or on 14th November 1996. He also conceded that, in respect of the 1994 to 1996 claims identified in paragraph 54 of the consolidated statement, he had not filed the relevant criminal proceedings or court files showing the charges, the evidence tendered, or the manner in which the criminal cases were terminated.
23. He was questioned on the documents marked PM-1, PM-2, PM-3, PM-4, PM-5 and PM-6. He said that he did not have the originals of some letters, that one letter did not expressly identify him as the accused person, that another letter was not copied to him and he was not its maker, and that the newspaper cuttings were photocopies without a certification. He further agreed that the bond pending arrest did not by itself confirm that he was later arrested.
24. On medical evidence, the Petitioner was referred to a letter dated 18th April 2011 from Dr Allan Smith and to a later medical document. He accepted that the medical assessment was prepared many years after the events complained of and that he did not have contemporaneous treatment records for the 1994 to 1996 period. He also admitted that the photographs relied upon did not show when they were taken, which device was used, or a certificate from the maker.
25. The Petitioner explained the delay by stating that he was on the run and that it only became safe for him to sue in 2017 after the key political actors behind his persecution had either died, retired or lost influence. He stated that he fled into exile and obtained political asylum in the United States of America. On cross-examination, however, he said that he had not filed his asylum application documents and that he had not received threats or violations from the Government after the promulgation of the 2010 Constitution. He also acknowledged that he lives in the United States and occasionally comes to Kenya.
26. The KNCHR decision produced in the record shows that the complaint before the Panel originated from letters or petitions submitted on 20th December 2003 and 27th May 2004, when the Petitioner complained of torture, wrongful confinement and malicious prosecution for murder. The issues framed by the Panel were whether the Petitioner had been arrested and detained on or about July 2003, whether he had been tortured after that arrest, whether the murder prosecution was malicious, and what damages were payable.
27. Although the Petitioner gave the KNCHR Panel a background of earlier arrests and prosecutions from 1994, the Panel expressly stated in its decision that its concern was the 2003 case and not the earlier cases. The Panel awarded damages for the 2003 malicious prosecution and torture, together with special damages.
Parties' Submissions
28. The Court has considered the parties' written submissions and the authorities cited. The Petitioner submits that the Respondents filed a replying affidavit but elected not to call the deponent or any other witness. Relying on Rono v Lomsons Enterprises (Civil Case 5 of 2019) [2024] KEHC 6249 (KLR), he argues that his oral testimony and documents were therefore uncontroverted and that the factual allegations of arbitrary arrest, torture, unlawful detention and malicious prosecution should be taken as proved.
29. On limitation, the Petitioner relies on Monica Wangu Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR) for the proposition that constitutional claims founded on violation of rights and freedoms are not subject to ordinary limitation statutes. He also relies on Kisilu Mutua v Attorney General [2017] eKLR and submits that the Court should take judicial notice of the political conditions prevailing during the period of the alleged violations, the intimidation of journalists and the difficulty of suing the State during the former constitutional order.
30. On res judicata, the Petitioner submits that the Kenya National Commission on Human Rights decision of 6th September 2006 dealt only with the 2003 arrest, alleged torture and malicious prosecution for murder. He points to the issues framed by the Commission, which concerned the July 2003 arrest and detention, assault or torture after that arrest, the murder prosecution and damages. He argues that the references to earlier arrests from 1994 were merely illustrative background and not matters determined by the Panel.
31. On the merits, the Petitioner submits that he met the pleading threshold in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. He further submits that although the pleaded violations occurred before the 2010 Constitution, the rights invoked have equivalents under sections 70, 72, 74 and 79 of the former Constitution, and that the Court should apply those corresponding provisions as guided by Monica Wangu Wamwere.
32. The Petitioner submits that the alleged physical assaults, detention without medical attention, incarceration, psychological injury and later medical reports establish torture and cruel, inhuman or degrading treatment. He also submits that the repeated prosecutions arising from his journalistic work met the test for malicious prosecution as laid down in the case of George Masinde Murunga v Attorney General [1979] KLR 138, Attorney General v Peter Kirimi Mbogo & another [2021] eKLR, Mbowa v East Mengo District Administration [1972] EA 352 and Kagane & others v Attorney General [1969] EA 643.
33. On reliefs, the Petitioner seeks a total award of Kshs. 24,000,000 made up of Kshs. 10,000,000 for torture, Kshs. 10,000,000 for malicious prosecution and aggravated damages, and Kshs. 4,000,000 for breaches of sections 70(a), 72, 73, 74 and 79 of the former Constitution and their equivalent provisions in the 2010 Constitution. He also seeks interest from the date of filing and costs.
34. The Respondents submit that the replying affidavit sworn by Charles Kasis is evidence properly before the Court and that, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, a constitutional petition may be determined on affidavit evidence, oral evidence, written submissions or such other mode as the Court directs. They rely on Daniel Kibet Mutai & 9 others v Attorney General to submit that affidavit evidence is legally admissible evidence and that their decision not to call oral evidence did not shift the burden of proof.
35. The Respondents submit that Rono v Lomsons Enterprises is distinguishable because it constituted an ordinary civil claim, while the present proceedings remains governed by the constitutional pleading and proof framework. They argue that the Petitioner retained the burden to prove the specific violations pleaded, and that a replying affidavit denying the allegations was sufficient to join issue on the disputed facts.
36. On delay, the Respondents submit that the Petition was filed about 23 years after the alleged 1994 to 1996 incidents. They argue that the delay remains inordinate, unexplained, and prejudicial to their right to a fair hearing because most of the alleged actors have died, retired, or are otherwise unavailable, and the relevant police, court, and medical records are no longer reasonably available. They rely, among other authorities, on Peter M. Kariuki v Attorney General, Daniel Kibet Mutai & 9 others v Attorney General, Wellington Nzioka Kioko v Attorney General [2018] eKLR and James Kanyiita Nderitu v Attorney General & another [2019] eKLR.
37. The Respondents further submit that the Petition offends the doctrine of constitutional avoidance because the pleaded complaints are, in substance, ordinary claims for malicious prosecution, false imprisonment and assault presented as a constitutional petition to avoid limitation statutes. They also rely on Zehrabanu Janmohammed & another v Nathaniel K. Lagat & 4 others to submit that the proposition that every constitutional petition automatically ousts limitation statutes is not absolute and must be applied on a case-by-case basis.
38. On res judicata, the Respondents submit that the Petitioner placed the history of arrests and prosecutions from 1994 before the KNCHR Panel, obtained an award of Kshs. 5,053,671, had that award adopted as an order of the High Court in Nairobi Miscellaneous Application No. 943 of 2007 and later pursued enforcement through judicial review proceedings. They argue that the present Petition re-litigates matters that were, or ought to have been, dealt with in that process.
39. Finally, the Respondents submit that the Petitioner has not produced the primary records required to prove the five incidents now relied upon. They point to the absence of charge sheets, criminal proceedings, withdrawal orders, OB entries, medical treatment notes, P3 forms and witnesses to the alleged assaults or detention. They submit that the later medical reports do not link the claimed injuries to the 1994 to 1996 incidents and thus no declaration or damages can issue on the same .
Issues for Determination
40. Having considered the pleadings, the consolidated statement, the supplementary and replying affidavits, the KNCHR decision, the oral evidence, the written submissions and the authorities cited, the issues for determination are:
a. whether the Petition is barred by res judicata, previous compensation, delay or laches;
b. what effect, if any, follows from the Respondents' failure to call oral evidence;
c. whether the Petitioner has proved the alleged constitutional violations arising from the 1994 to 1996 incidents; and
d. whether the Petitioner is entitled to the declarations, damages and other reliefs sought.
Applicable Legal Principles
41. A party alleging violation of constitutional rights must set out the right alleged to have been violated, the facts constituting the violation and the manner in which the right was violated with reasonable precision. This principle, held in the case of in Anarita Karimi Njeru v Republic [1979] eKLR and restated by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, is not a demand for technical perfection. It is a requirement of fair notice, proof and adjudication.
42. The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act. It bars a court from trying a matter that was directly and substantially in issue in a former suit or proceeding between the same parties, or parties claiming under them, where the issue was heard and finally determined by a court or tribunal of competent jurisdiction. The doctrine serves the public interest in finality, but it applies only to matters actually and substantially determined, or matters which properly ought to have been raised in the earlier proceedings.
43. The legal burden of proof stays on the party who alleges. Sections 107, 108 and 109 of the Evidence Act place that burden on the Petitioner. The standard is proof on a balance of probabilities. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal emphasised that the trial court must examine the evidence and satisfy itself that the claim has been proved. The standard does not change merely because the other side has not called rebuttal evidence.
44. The Court agrees with the proposition that an affidavit is evidence not a pleading . The Mutunga Rules permit constitutional petitions to be heard by affidavit evidence, oral evidence, written submissions or such other mode as the Court directs. The Respondents' failure to call the deponent for oral evidence therefore does not, by itself, expunge the replying affidavit from the record or convert the Petition into an undefended claim. It may affect the effect of the Respondents' factual denial, but it does not relieve the Petitioner of the burden to prove the pleaded violations.
Res Judicata, Previous Compensation and Delay
45. The incidents now pressed by the Petitioner occurred between 1994 and 1996. The Petitioner's own evidence is that the Petition was filed in 2017. By then, between 21 and 23 years had elapsed from the incidents specifically retained in the claim, and more than seven years had elapsed after the promulgation of the Constitution of Kenya, 2010.
46. I first address res judicata. The Respondents' argument is founded on the KNCHR decision and its later adoption by the High Court. The record shows that the Petitioner presented to the KNCHR Panel a history of arrests and prosecutions from 1994, 1996, 1998, 2002, and 2003. However, the issues framed by the Panel concerned the July 2003 arrest and detention, torture after that arrest, malicious prosecution for murder, and the damages arising therefrom.
47. It is therefore true that the Petitioner narrated earlier arrests and prosecutions as part of the background before the KNCHR Panel. It is equally true that the Panel expressly stated that its concern was the 2003 case and not the earlier cases. The evidence before this Court does not show that the 1994 to 1996 incidents were expressly adjudicated on their merits by the Panel.
48. However, the prior proceedings remain material. The Petitioner admitted that he filed civil claims against the Government arising from other incidents and obtained compensation in 2006 and 2007. He also lodged a complaint with the Kenya National Commission on Human Rights in 2005, appeared before it and received a decision in 2006. By then, he was aware of, and able to narrate, the 1994 to 1996 incidents.
49. If the Petitioner's position was that the Commission failed to determine the 1994 to 1996 aspects despite their having been placed before it, that was a matter he could have pursued without unreasonable delay by appeal, review or fresh proceedings. He did not do so. To the extent that the present Petition seeks to reopen matters that were part of the wider historical complaint and could have been pursued in earlier proceedings, it offends the principle of conclusiveness and is subject to constructive res judicata or, at the very least, amounts to an abuse of process.
50. The Court also accepts that the events complained of occurred before the promulgation of the Constitution of Kenya, 2010. That does not place them beyond constitutional scrutiny. The former Constitution protected, among others, personal liberty, protection of the law, freedom from torture and inhuman treatment, and freedom of expression under sections 70, 72, 74 and 79. The current Articles relied upon must therefore be understood, where appropriate, by reference to their equivalents in the former constitutional order.
51. In any event, on the issue of delay, it is now settled that while the Constitution does not prescribe an ordinary limitation period for enforcement of fundamental rights, the absence of a specific limitation period is not a licence to file claims after unreasonable delay without explanation. In Monica Wangu Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), the Supreme Court affirmed that there is no ordinary limitation period for claims founded on violation of fundamental rights and freedoms, but also held that whether a claim has been brought within a reasonable time is to be determined case by case, taking into account the explanation for delay and the circumstances of the particular violation.
52. The Supreme Court's later decision in Zehrabanu Janmohammed & another v Nathaniel K. Lagat & 4 others similarly cautions that the proposition that a constitutional petition automatically ousts limitation statutes is not absolute. In this case, however, it is unnecessary to determine the Petition solely on statutory limitation. The decisive questions are whether the delay has been satisfactorily explained, whether the delay has caused prejudice, and whether the allegations have been proved.
53. The Court has also considered the transitional justice approach in Kisilu Mutua v Attorney General [2017] eKLR. Courts must remain sensitive to the historical background in which past violations occurred, especially where State power allegedly made timely litigation difficult or dangerous. At the same time, a litigant must give a sufficient explanation for the particular delay in the particular case, especially where the litigant was able to pursue other proceedings against the State during the intervening period.
54. The reason for the rule on delay is practical and constitutional. With the passage of time, files may be lost, witnesses may die, memories might fade, and public institutions may be placed in an unfair position in attempting to answer allegations whose primary records are no longer reasonably available. The Court therefore considers the length of delay, the explanation offered, the conduct of the parties, prejudice, and the nature of the alleged violation.
55. The doctrine of constitutional avoidance is not a bar to every petition that mentions facts capable of founding a tort claim. A malicious prosecution, unlawful detention or assault claim may, on proper facts, also disclose a violation of constitutional rights. The doctrine, however, cautions that a constitutional petition should not be used to evade ordinary limitation rules or to obtain public law remedies where the dispute is, in substance and proof, an ordinary private law claim unsupported by constitutional facts.
56. Where the pleaded claim is in substance one of malicious prosecution, the Petitioner must prove the settled elements stated in George Masinde Murunga v Attorney General [1979] KLR 138 and Mbowa v East Mengo District Administration [1972] EA 352. He must show that the prosecution was instituted by the defendant or by persons for whose acts the defendant is responsible, that it terminated in his favour, that it was instituted without reasonable and probable cause, and that it was actuated by malice. The elements must unite; termination of a criminal case in favour of an accused person is not, without more, proof of malicious prosecution.
57. Where a violation is proved, Article 23(3) empowers the Court to grant appropriate relief, including declarations and compensation. In Gitobu Imanyara, the Court of Appeal held that constitutional damages are discretionary public law remedies. Their primary purpose is not punitive or merely compensatory, but to vindicate rights and restrain future infringements. The remedy must be appropriate and just in the circumstances of the case.The question of delay is decisive. The Petitioner explained that he feared for his life, that he was in exile, and that it became safe to sue only in 2017 when the relevant political actors had died, retired or ceased to wield influence. The Court has considered that explanation sympathetically. It is not fanciful that journalists and human rights defenders suffered repression in the period in question.
58. The Court also recognises that historical violations may not always be litigated promptly, especially where State power was itself the alleged source of fear, as stated in Monica Wangu Wamwere and Kisilu Mutua. Those authorities, however, do not remove the need to consider delay on a case-by-case basis. The explanation offered must be tested against the evidence.
59. In this case, the Petitioner was able to pursue other claims against the Government during the intervening period. He filed civil proceedings, lodged the KNCHR complaint, testified before the Commission, obtained compensation and later pursued enforcement. He accepted that he had not filed his asylum documents and that he had not received threats or violations from the Government after the promulgation of the 2010 Constitution. The explanation therefore does not adequately cover the period after the KNCHR decision in 2006, the civil compensation payments in 2006 and 2007, or the period after the 2010 Constitution.
60. The Respondents submitted that the delay prejudiced them because they cannot trace the relevant records due to the effluxion of time. The Petitioner also conceded that most witnesses had passed on, that several alleged perpetrators are dead, and that the police records, criminal files, medical records, occurrence book entries, charge sheets and proceedings that would have assisted the Court are not before it.
61. The promulgation of the 2010 Constitution did not, by itself, revive every historical
[...truncated]