' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 164 OF 2014
SAMUEL MULAVU SEGERO…………………….1 ST PETITIONER
PROTUS UNGAYI MILIMU…………………….2 ND PETITIONER
PROTAS MACHINA MUKANZI………………..3 RD PETITIONER
COSMAS INGAVI AYEKHA……………………4 TH PETITIONER
HENRY LUBEMBE NGAIRA…………………..5 TH PETITIONER
PETER MANYENGO MIHESO…………………6 TH PETITIONER
GEORGE NYALIGU ISEMERE…………………7 TH PETITIONER
JULIUS NDEVWA BULEDI…………………….8 TH PETITIONER
ALLAN SAGALA LAGOSWA…………………9 TH PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL…………1 ST RESPONDENT
THE KENYA ARMED FORCES………………2 ND RESPONDENT
JUDGMENT
A: Introduction
The petitioners were enlisted into the Kenya Air Force (KAF) on diverse dates and were service officers as at 1 st August 1982. Following the attempted coup on 1 st August 1982, an announcement was issued directing all Air Force personnel report to the nearest military bases or police stations. The petitioners responded and were immediately arrested and detained at various military camps and police stations for several days before being taken to various prisons without having been taken to a court of law.
During their stay in remand prisons, the petitioners were beaten and forced to undress naked; were tortured and kept in dark rooms flooded with water to knee-high level. They were denied food medical attention; toiletry and other basic necessities. Their employment contracts were later terminated unlawfully without payment or terminal dues. They lost valuables including documents and personal effects.
B: Petition
The petitioners filed this petition dated 4 th April 2014 against the respondents, claiming violation of their rights and fundamental freedoms and sought declarations to that effect, an order for compensation and costs of the petition.
The petitioners stated that they were subjected to torture, cruel, inhumane and degrading treatment and punishment during their arrest and confinement. Their constitutional rights and fundamental freedoms guaranteed under articles 25, 28, 29, 39, 40, 41, 49 and 51 of the Constitution were also violated.
C: Oral evidence
The petitioners testified and gave evidence in no particular order since they were available to testify at different times. Julius Ndegwa Buleni, the 8 th petitioner was the first to testify. He told court that he enlisted with KAF in September 1977 and assigned service No. 022785. On the night of 31 st July 1982, he was woken up by firing at the Eastleigh Airbase where he was stationed. He went out only to find the Base surrounded by officers. He was ordered to go to a central point where they were ordered to kneel down. They were ordered to go to the armoury and take arms which they did. They were then ordered to enter army vehicles and taken to the city centre.
At the city centre, there was indiscriminate firing. They were ordered to alight and were disarmed. Within a short time, GSU officers arrived and took them into custody. They were about 15 people and were made to walk in a single line. Some of them were shot in the process. They were ordered undress; frog marched and made to lie down. After a while, they were ordered to stand and recite their service numbers, rank and station. He was sixth in the line and all those ahead of him were shot. They were taken to central police station where he was beaten and kicked. He was also hit in his private parts and had to undergo surgery at Mukuru Hospital.
In the evening, they were taken to Langata Army Barracks where he was again beaten, kicked and pushed from one side to another. Later at about 8pm, they were loaded onto a lorry and taken to Kamiti Maximum Security Prison where they were put in one room and made to squat for about one hour. The following morning, he was taken to Naivasha Maximum Security Prison where he was again tortured. He was kept in a water-logged cell while naked and made to relieve himself in the same room. He was kept incommunicado and went without food for 7 days.
After 10 days, he was taken to another room which did not have water and was made to clean the blocked toilets with bare hands. He was thereafter forced to eat food without washing his hands leading to diarrhoea. He was detained at Naivasha Prison for a month and later returned to Kamiti. He was taken to a Court Martial where he was threatened and made to plead guilty. He was sentenced to four years which he served at King’ong’o GK Prison. He was released after one year and thereafter he was discharge and given a discharge certificate. In 1983 he was called to collect his identity card. He told court that his life changed after that ordeal. He did not find his wife at home and he never recovered his documents.
In cross examination, he told court that after he was discharged from service, some officers told him he could go back to work. When he went to the DoD, he was told that they only wanted him to collect his Identity Card. He stated that as a result of the torture at Kamiti and Naivasha Prisons, he developed some ailment. He also told the court that even though he had tried to apply for jobs, he did not succeed. His sister died on hearing what he was going through.
Samwel Mulavu Segero, the 1 st petitioner, testified and adopted his witness statement dated 4 th April 2014 and the anextures as his evidence before the court. He told court that he enlisted with KAF in 1977 and assigned service No. 022666. After initial military training he was posted to worked as a fighter control operator/Radar operator. On 1 st August 1982, he was away from his station when the coup took place. He surrendered at an army post in Kisumu from where he was taken to Nakuu Kenya Army Rifles where he was held for three weeks. After interrogation, he was told there was no problem. However, after three weeks, he was taken to Kamiti Prison where he stayed for three months during which he was tortured, given little or no food and allowed a few hours in the sun. They were about 100 people in a room and they would relieve themselves in the same room.
He was later transferred to Naivasha Prison where they were kept four people in a water-logged cell up to knee high for one week and without food. He was again returned to Kamiti Prison and later taken to town and asked to go home with directions to report to his Area chief daily and not to return to Nairobi.
Segero told the court that he did not have a document to show that he was at Kamiti prison. His name was tarnished because of what he went through and his father died after hearing that he had been arrested.
Henry Lubembe Ngaira, the 5 th petitioner, also adopted his witness statement dated 4 th April 2014 as evidence and annextures as exhibits. He stated that he enlisted with KAF on 21 st February 1977 and assigned service number 022475. He was arrested on 2 nd August 1982 after the attempted coup and held in various security facilities where he was tortured. He was later discharged because his service was no longer required. He was issued with a certificate of service on 31 st January 1983. he stated that he was not charged before a court martial and although his certificate of discharge showed that he was of good conduct, he could not get a job. After discharge, he sought medical attention but did not have evidence of treatment in court because it had been long.
Cosmas Ingavi Ayekha, the 4 th petitioner, equally adopted his witness statement dated 4 th April 2014 and annextures as exhibits. According to Ayekha, he joined KAF on 21 st February 1977 and given service No. 022546. After initial military training, he was posted to work as a clerk. He was discharged on 20 th October 1982. He told court that he lost his personal effects and certificates when he was arrested and on being discharged, he was not allowed to go back to look for his documents. He had tried to get a job without success because of having been a member of the disbanded KAF. His family suffered while in he was in detention since they were depending on him. His life was adversely affected and that of his family following his discharge.
Protas Machina Mukanzi, the 3 rd petitioner, adopted his witness statement dated 4 th April 2014 and annextures as evidence and exhibits in court. According to Mukanzi, he joined KAF on 2 nd September 1977 and was assigned service No. 022742. After military training, he was posted to work as a storeman. After his arrest, he was detained at Kamiti Prison under harsh conditions; he was kept in a wet cell without clothes and was denied food for 15 days. He lost his belonging and certificates during his arrest. After discharge, he sought medical attention but due to the long period it had taken, he did not have medical evidence. He was discharged on 31 st January 1983. He relied on the certificate of service as proof of service with KAF.
Allan Sagala Lagoswa, the 9 th petitioner, also adopted his statement dated 4 th April 2014 and exhibits as his evidence before the court. He stated that he joined KAF on 20 th May 1977 and given service No. 022922. He was attached at Nanyuki Airbase as at 1 st August 1981. On 31 st July 1981, after duty, he travelled to Nairobi with friends and arrived at Eastleigh at 9 pm. He did not find his brother and left for town where he spent the night and only learnt about the coup in the morning. He went to Eastleigh airbase and was made to arm himself and proceeded to the city centre but they were attacked on the way. He escaped and went back to the station.
The following morning, he reported at the camp where he was arrested and taken to Kahawa Barracks. They were later transferred to Kamiti Prison and later to Naivasha Prison. They were tortured; kept naked in a dark waterlogged room was denied food for 7 days. He was held for several months and later taken to the court martial on 15/10/82 and charged with mutiny and sentenced the same day to 9 years and later discharged from service. He suffered while in prison and was still feeling the after effects. He was not given medical records when he was released on 15 th October 1988.
Protus Ungayi Milimu, the 2 nd petitioner, testified adopting his statement dated 4 th April 2014 and exhibits as his evidence. He enlisted with KAF on 7 th February 1979 and assigned service No. 024038. After basic military training, he was deployed at the ground to Air defence unit. On 1 st August 1982 he was away from the station when the coup took place. He reported at Jogoo Police Station on 5/8/82 and was immediately arrested and taken to Army Headquarters and later to Athi River prison. He was interrogated and later transferred to Kamiti prison then Naivasha Prison. He was tortured; kept in dark waterlogged cell and denied food and other basic necessities. He was discharged from service on 31 st January 1983. After being discharged, he tried to get employment without success. He also lost his academic certificates. He was still under medication.
George Nyaligu Isemere, the 7 th petitioner, also adopted his witness statement dated 4 th April 2014 and exhibits as his evidence in court. He joined KAF on 12 th September 1979 and assigned service No. 024324. After basic military training, he was posted to work as a fireman. He was arrested and tortured during incarceration. He was later tried at the court martial, convicted and sentenced to 3 years. He lost his property following his arrested.
Peter Manyengo Miheso, the 6 th petitioner did not testify and therefore did not take part in this petition.
D: Respondents’ response
The respondents opposed the petition through grounds of opposition and a replying affidavit sworn by Major Edwin Kibiru Muta (Major Muta) on 2 nd June 2023. Major Muta stated that the petitioners are guilty of laches having instituted the petition more than thirty-two years after the cause of action arose thus, the 2 nd respondent will be prejudiced because its evidence has been lost or degraded while witnesses have either left service or died.
Major Muta denied the alleged violations of rights and fundamental freedoms; denied that the petitioners were members of the Armed Forces and that they were arrested on account of merely being personnel of the Armed Forces. Major Muta stated that if the petitioners were members of the Armed Forces, any arrests were as a result of their participation in the attempted coup, either actively or passively, by obeying illegal orders and arming themselves against the government.
Major Muta again denied the petitioners’ claim that they were arrested without reasonable cause; that they were kept in solitary confinement, tortured or unlawfully discharged from service. He also denied allegations that petitioners were frequently moved from one place of detention to another; that they were kept in cruel, inhuman and degrading conditions or were detained incommunicado.
Major Muta asserted that if the petitioners were servicemen in the Armed Forces, they were subject to the repealed Armed Forces Act (Cap 199) and were entitled to the Constitutional rights and freedoms enshrined under the repealed constitution subject to the limitations specified thereunder.
According to Major Muta, the petitioners were all taken into lawful custody in accordance with section 70 of the repealed Armed Forces Act as read with rule 6 of the repealed Armed Forces Rules of Procedures on account of having been reasonably suspected of participating in the coup. Major Muta stated that the petitioners were sentenced to dismissal from service on account of being found culpable of involvement in the coup after undergoing summary trial before their respective commanding officers. Due process was followed with regard to the arrests, investigations as well as administrative, disciplinary and or penal sanctions applied against the petitioners.
E: Oral evidence
Major Muta testified on behalf of the respondents and adopted his replying affidavit as his evidence. He informed the court that he is the Staff Officer II Records at the Department of Defence Headquarters which keeps the records of retired officers and service members. He had worked at Defence Headquarters since July 2022 but had been in KDF for 19 years. He confirmed that he had not attached any documents to show the records of any of the petitioners. He was also not aware if the petitioners were reassigned to other stations, if they were imprisoned in service prisons in Kenya and would have no records of such imprisonment.
Major Mute told the court that there would be no records on the petitioners’ torture or medical condition while under detention. He was equally not aware of any records regarding the petitioners’ trial in court. He told the court that the Kenya Defence Forces Act does not allow torture and that the petitioners’ records do not exist.
Major Muta stated that retired officers are service members who honourably served and left the service. He did not have the petitioners’ records because documents are destroyed after 10 years. He maintained that KDF does not condone torture of whatever form and that an offender can be dealt with through court martial, summary procedures or the Defence Council can deal with any offenders at any time. According to Major Muta, an offender can be placed under confinement in the Barracks but that is not detention. A service member can be placed in prison if he is to be interrogated and the guard room cannot contain the member.
F: Submissions
Parties filed written submissions which they relied on.
G: Petitioners’ submissions
The petitioners filed written submissions through their advocates. On delay in filing the petition, they argued that there is no limitation period for filing a claim on violation of fundamental rights and freedoms. They relied on the decisions in Dominic Arony Amolo v Attorney General [2003] eKLR; Kamlesh Mansuklal Damji Pattni v Republic [1995] KECA 127 (KLR) and Joan Akinyi Kabasellah & 2 others v Attorney General [2014] eKLR.
The petitioners submitted that there have been decisions in cases filed against the respondents from the same cause of action, including David Gitau Njau & 9 others v Attorney General [2013] eKLR and Peter M. Kariuki v Attorney General [2014] eKLR and it would be discriminatory if this court dismissed their claim on grounds of delay.
The petitioners argued that the respondents’ argument that they will be prejudiced is not correct. The petitioners maintained that the government and public bodies possess institutional succession and perpetuity and, therefore, evidence and records cannot be easily affected by lapse of time. They stated that they could not have pursued justice earlier because of the political situation under the repressive government of the day.
The petitioners cited article 1 of the Convention Against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment and the decisions in Samwel Rukenya Mbura & others v Castle Brewing Kenya Limited & another [2006] eKLR and Republic v Minister for Home Affairs and 2 others Exparte Leonard Sitamze [2008] eKLR on the definition of torture, cruel, inhuman and degrading treatment which they were subjected to.
The petitioners relied on the decision in David Gitau Njau & 9 others v Attorney General [2013] eKLR for the position that their right to freedom from torture and cruel, inhuman or degrading treatment was violated when they were locked in dark waterlogged rooms for several days while naked; being denied food, water, toilet facilities and other basic necessities; being slapped, kicked, gun-butted; frog marched and denied proper medical care. The petitioners maintained that they did not have medical records because they could not have accessed treatment since they were being held incommunicado and for long periods of time.
The petitioners relied on article 25 (a) of the Constitution; article 5 of the United Nations Universal Declaration of Human Rights (UDHR) and Guidelines of Committee of Ministers of the Council of Europe on Human Rights and the Rights against Terrorism, 11 th July 2002, for the proposition that torture, inhuman and degrading treatment are prohibited and there is no justification for it.
The petitioners again relied on the decisions in Ann Njogu & 5 others v Republic [2007] eKLR and Albanus Mwasia Mutua v Republic [2006] KECA 346 (KLR) to submit that their right to human dignity was violated because they were held in detention for months without being arraigned in a court of law; they were dismissed from service without a hearing and their rights as arrested persons guaranteed under article 49 of the Constitution were violated because they were arrested and detained without trial. They argued that their treatment was an affront to sections 48 and 72 (2) of the repealed Armed Forces Act.
The petitioners asserted that the 2 nd respondent’s action of keeping them in incommunicado confinement without trial violated their right to personal liberty and human dignity. They reiterated that the torture they were subjected to while in detention was in violation of their rights guaranteed under article 51 of the Constitution. They relied on the decisions in Njuguna s/o Kimani & 3 others v Reginam [1954] 21 EACA 316; David Gitau Njau ( supra); Peter M. Kariuki v Attorney General [2014] eKLR; Peter Tonny Wambua & 17 others v Attorney General [2017] eKLR and Silla Muhia Kinyanjui & 2 others v Attorney General [2020] eKLR.
The petitioners again submitted that their right to remission of sentence was violated because they were forced to serve unwarranted imprisonment for periods ranging between 8 and 16 months as these were periods for which their sentences could have been reduced as provided under section 46 of the Prisons Act. They argued that failure to remit their sentences amounted to illegal detention thus, violated their rights under sections 70(a), 73(1) and 77 of the repealed constitution and articles 8(3) and 9(1) of the ICCPR.
The petitioners again cited rules 95(1), 96 and 97 of the Prisons Rules and the decisions in David Oloo Onyango v Attorney General [1987] eKLR and Stephen Nderu Njuguna v The Commissioner of Prisons & another [2011] eKLR for the position that denial of remission of sentence without lawful justification violated their right to liberty and they are entitled to compensation.
The petitioners maintained that their right under article 41 of the Constitution was violated because although they were never charged with any offence in a court martial or any court, after release they were dismissed from service. They were also not paid any terminal or redundancy dues and were sent home without payment of any salary, terminal benefits and or pension contrary to the Armed Forces Act and the Armed Forces Standing orders.
On quantum, the petitioners relied on the decisions in Captain (Rtd) Frank Mbugua Munuku v Kenya Defence Forces & another [2013] eKLR; Dominic Arony Amolo (supra); Jennifer Njoroge Muthoni & 10 others v Attorney General [2012] eKLR; Odhiambo Olei v Attorney General civil Case No. 365 of 1995 and Peter Kariuki v Attorney General (Petition No. 233 of 2009) and urged the court to award Kshs. 20,000,000 each as general damages. They also prayed for exemplary damages of Kshs. 5,000,000 each and costs of the petition.
H: Respondents’ submissions
The respondents also filed written submissions through their advocates. The respondents submitted, relying on sections 107 and 109 of the Evidence Act and the decisions in Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] eKLR and Ahmed Mohammed Noor v Abdi Osman [2019] eKLR, that the petitioners did not prove that they served as members of KAF and the Armed Forces.
The respondents argued that the petitioners were guilty of latches because the petition was filed after more than thirty years without plausible reasons; it was an afterthought and affected their (respondents’ rights) guaranteed under article 50 of the Constitution as they were unable to mount a plausible defence. The respondents relied on the decision in Wellington Nzioka Kioko v Attorney General [2018] KECA 858 (KLR).
The respondents urged the court to take into account the fact that as early as 2003, persons aggrieved by acts of the “Moi era” approached courts for redress for alleged violations of constitutional rights and fundamental freedoms before the promulgation of the 2010 Constitution. They relied on Stanley Waweru Kariuki v Attorney General [2013] eKLR; Harun Thungu Wakaba v Attorney General [2010] eKLR and Oduor Ong’wen and 20 others v Attorney General [2011] KEHC 260 (KLR).
The respondents argued that an explanation for the delay is a necessary requirement even if there is no limitation of time for filing constitutional petitions. Reliance was placed on the decisions in Peter Ngari Kagume & 7 others v Attorney General [2009] KEHC 4179 (KLR); Masulal Maganlal Rawal v Maneklal Maganlal Rawal [1989] KEHC 93 (KLR); Abraham Kaisha Kanzika alias Moses Savala Keya t/a Kapco Machinery Services and Milano Investments Limited v Governor Central Bank of Kenya and 2 others [2006] KEHC 3525 (KLR) and James Kanyiita v Attorney General and Another [2012] KEHC 1420(KLR).
They respondents again relied on Black’s Law Dictionary 8 th Edition and article 1 of the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment to argue that the petitioners did not proved torture and that no acts of torture recognised in law were committed against the petitioners. Reliance was placed on Monicah Wangui Wamwere v Attorney General [2019] eKLR and Robert Njeru v Attorney General [2014] eKLR.
The respondents went on to rely on other decisions, including Peter Ngari Kagume & 7 others v Attorney General (supra); Anarita Karimi Njeru v Republic [1979] eKLR and Matiba v The Attorney General Misc. Application No. 666 of 1990 (UR) to argue that the petitioners did not prove the alleged detention; did not show where they were held in custody; for how long; when they were transferred and when they were released.
The respondents argued that the 7 th petitioner admitted in his witness statement that he was tried and convicted by a competent court of law and sentenced to three-years sentence but did not appeal against the conviction and sentence. The respondents maintained that if the petitioners were members of the Armed Forces, their arrest, detention and prison sentences followed the legal process under the applicable laws governing mutineers.
The respondents urged the court to adopt the principles laid in Peter Ngari Kagume & 7 others v Attorney General (supra) and consider the case of Charles Gachathi Mboko v Attorney General [2014] eKLR in the event it is inclined to grant the reliefs sought. They urged the court to dismiss the petition with costs.
I: Determination
I have considered the pleadings; arguments made on behalf of the parties as well as the decisions relied on. The issues for determination are whether the petitioners were members of the armed forces; whether their rights and fundamental freedoms were violated; whether the petition was brough after inordinate delay and what relief to grant.
The petitioners, except Peter Mayengo Miheso, (the 6 th petitioner) who did not participate in these proceedings, stated; averred and deposed that they were members of KAF a branch of the Armed Forces of the Republic of Kenya having been enlisted on various dates and assigned individual service numbers. After initial military training, they were posted to different stations to perform various tasks within KAF and were still working as at 1 st August 1982 during the coup attempt when things turned for the worse against them.
The petitioners told the Court that they were arrested on different dates after the coup attempt, some after they presented themselves to Police Stations and military camps following the announcement to that effect. Some were was arrested within the city centre where they had been commandeered to by their seniors.
The petitioners stated that following their arrest, they were brutally beaten, tortured and locked in waterlogged cells as they were subjected to interrogations. They were taken to Kamiti Prison and later transferred to Naivasha Prison and subjected to cruel and inhuman treatment for several days and months. They were held in crowded cells without food; medical attention and other basic necessities. They were sometimes frog marched, beaten indiscriminately, made to stripped naked while in waterlogged cells and subjected to other inhuman and degrading treatment while being held incommunicado.
According to the petitioners, they were held and interrogated for several months without being produced in a court of law. Some were detained for months and released without trial while others were subjected to court martials and forced to plead guilty. It was the petitioners’ contention that their constitutional rights guaranteed under sections 70(a) 74(1), 72(3) of the repealed Constitution were violated.
The respondents denied that the petitioners were members of the armed forces and, if they were, their arrest was lawful for involvement in the coup attempt. The respondents also denied that the petitioners were tortured, mistreated or subjected to inhuman and degrading treatment. They also denied violating the petitioners’ constitutional rights. The respondents argued that the petitioners were guilty of laches in that they took too long to file the petition.
Based on the above contestations, it is important to determine first, whether the petitioners were members of the armed forces as it was then known.
J: Members of armed forces
The fact that the petitioners were members of KAF was disputed. However, the petitioners stated that they enlisted with KAF, gave the dates they were enlisted; service numbers assigned to each of them and the posts they were assigned to as they served. The petitioners also stated when they were arrested and when they were discharged from service. The petitioners produced extracts of Certificate of Service/Discharge Service from the Kenya Armed Forces issued on various dates attached to their documents in support of the position. They were discharged from the Armed Forces on grounds of service no longer required while others were dismissed.
The respondents did not dispute the service numbers the petitioners were assigned as belonging to KAF. They also did not disown the discharge certificates. It is also important to point out that the respondents did not deny categorically that the petitioners were members of the armed forces. Rather their denial was a qualified one which means it was a mere denial.
In the circumstances, taking into account the petitioners’ evidence, including documentary evidence on record, the conclusion the court comes to, is that the petitioners were indeed members of the armed forces having been enlisted to the KAF branch of the armed forces.
K: Violation of rights and fundamental freedoms
The petitioners averred that they were arrested and detained for prolonged periods without being produced in a court of law. During the detention and confinement, they were beaten, tortured, kept incommunicado, placed in waterlogged cells, denied food and subjected to in inhuman and degrading treatment. These facts were not only stated in the averments in the petition and depositions in the affidavits but also in the petitioners’ oral testimony in court.
The petitioners explained how they were moved from one prison to another between Kamiti and Naivasha Maximum Security Prisons before some of them were later taken before court martials; forced to plead guilty and sentenced. However, production of those petitioners before the court martial was not done within 14 days as the repealed constitution required. Petitioners who were not
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 164 OF 2014
SAMUEL MULAVU SEGERO…………………….1 ST PETITIONER
PROTUS UNGAYI MILIMU…………………….2 ND PETITIONER
PROTAS MACHINA MUKANZI………………..3 RD PETITIONER
COSMAS INGAVI AYEKHA……………………4 TH PETITIONER
HENRY LUBEMBE NGAIRA…………………..5 TH PETITIONER
PETER MANYENGO MIHESO…………………6 TH PETITIONER
GEORGE NYALIGU ISEMERE…………………7 TH PETITIONER
JULIUS NDEVWA BULEDI…………………….8 TH PETITIONER
ALLAN SAGALA LAGOSWA…………………9 TH PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL…………1 ST RESPONDENT
THE KENYA ARMED FORCES………………2 ND RESPONDENT
JUDGMENT
A: Introduction
The petitioners were enlisted into the Kenya Air Force (KAF) on diverse dates and were service officers as at 1 st August 1982. Following the attempted coup on 1 st August 1982, an announcement was issued directing all Air Force personnel report to the nearest military bases or police stations. The petitioners responded and were immediately arrested and detained at various military camps and police stations for several days before being taken to various prisons without having been taken to a court of law.
During their stay in remand prisons, the petitioners were beaten and forced to undress naked; were tortured and kept in dark rooms flooded with water to knee-high level. They were denied food medical attention; toiletry and other basic necessities. Their employment contracts were later terminated unlawfully without payment or terminal dues. They lost valuables including documents and personal effects.
B: Petition
The petitioners filed this petition dated 4 th April 2014 against the respondents, claiming violation of their rights and fundamental freedoms and sought declarations to that effect, an order for compensation and costs of the petition.
The petitioners stated that they were subjected to torture, cruel, inhumane and degrading treatment and punishment during their arrest and confinement. Their constitutional rights and fundamental freedoms guaranteed under articles 25, 28, 29, 39, 40, 41, 49 and 51 of the Constitution were also violated.
C: Oral evidence
The petitioners testified and gave evidence in no particular order since they were available to testify at different times. Julius Ndegwa Buleni, the 8 th petitioner was the first to testify. He told court that he enlisted with KAF in September 1977 and assigned service No. 022785. On the night of 31 st July 1982, he was woken up by firing at the Eastleigh Airbase where he was stationed. He went out only to find the Base surrounded by officers. He was ordered to go to a central point where they were ordered to kneel down. They were ordered to go to the armoury and take arms which they did. They were then ordered to enter army vehicles and taken to the city centre.
At the city centre, there was indiscriminate firing. They were ordered to alight and were disarmed. Within a short time, GSU officers arrived and took them into custody. They were about 15 people and were made to walk in a single line. Some of them were shot in the process. They were ordered undress; frog marched and made to lie down. After a while, they were ordered to stand and recite their service numbers, rank and station. He was sixth in the line and all those ahead of him were shot. They were taken to central police station where he was beaten and kicked. He was also hit in his private parts and had to undergo surgery at Mukuru Hospital.
In the evening, they were taken to Langata Army Barracks where he was again beaten, kicked and pushed from one side to another. Later at about 8pm, they were loaded onto a lorry and taken to Kamiti Maximum Security Prison where they were put in one room and made to squat for about one hour. The following morning, he was taken to Naivasha Maximum Security Prison where he was again tortured. He was kept in a water-logged cell while naked and made to relieve himself in the same room. He was kept incommunicado and went without food for 7 days.
After 10 days, he was taken to another room which did not have water and was made to clean the blocked toilets with bare hands. He was thereafter forced to eat food without washing his hands leading to diarrhoea. He was detained at Naivasha Prison for a month and later returned to Kamiti. He was taken to a Court Martial where he was threatened and made to plead guilty. He was sentenced to four years which he served at King’ong’o GK Prison. He was released after one year and thereafter he was discharge and given a discharge certificate. In 1983 he was called to collect his identity card. He told court that his life changed after that ordeal. He did not find his wife at home and he never recovered his documents.
In cross examination, he told court that after he was discharged from service, some officers told him he could go back to work. When he went to the DoD, he was told that they only wanted him to collect his Identity Card. He stated that as a result of the torture at Kamiti and Naivasha Prisons, he developed some ailment. He also told the court that even though he had tried to apply for jobs, he did not succeed. His sister died on hearing what he was going through.
Samwel Mulavu Segero, the 1 st petitioner, testified and adopted his witness statement dated 4 th April 2014 and the anextures as his evidence before the court. He told court that he enlisted with KAF in 1977 and assigned service No. 022666. After initial military training he was posted to worked as a fighter control operator/Radar operator. On 1 st August 1982, he was away from his station when the coup took place. He surrendered at an army post in Kisumu from where he was taken to Nakuu Kenya Army Rifles where he was held for three weeks. After interrogation, he was told there was no problem. However, after three weeks, he was taken to Kamiti Prison where he stayed for three months during which he was tortured, given little or no food and allowed a few hours in the sun. They were about 100 people in a room and they would relieve themselves in the same room.
He was later transferred to Naivasha Prison where they were kept four people in a water-logged cell up to knee high for one week and without food. He was again returned to Kamiti Prison and later taken to town and asked to go home with directions to report to his Area chief daily and not to return to Nairobi.
Segero told the court that he did not have a document to show that he was at Kamiti prison. His name was tarnished because of what he went through and his father died after hearing that he had been arrested.
Henry Lubembe Ngaira, the 5 th petitioner, also adopted his witness statement dated 4 th April 2014 as evidence and annextures as exhibits. He stated that he enlisted with KAF on 21 st February 1977 and assigned service number 022475. He was arrested on 2 nd August 1982 after the attempted coup and held in various security facilities where he was tortured. He was later discharged because his service was no longer required. He was issued with a certificate of service on 31 st January 1983. he stated that he was not charged before a court martial and although his certificate of discharge showed that he was of good conduct, he could not get a job. After discharge, he sought medical attention but did not have evidence of treatment in court because it had been long.
Cosmas Ingavi Ayekha, the 4 th petitioner, equally adopted his witness statement dated 4 th April 2014 and annextures as exhibits. According to Ayekha, he joined KAF on 21 st February 1977 and given service No. 022546. After initial military training, he was posted to work as a clerk. He was discharged on 20 th October 1982. He told court that he lost his personal effects and certificates when he was arrested and on being discharged, he was not allowed to go back to look for his documents. He had tried to get a job without success because of having been a member of the disbanded KAF. His family suffered while in he was in detention since they were depending on him. His life was adversely affected and that of his family following his discharge.
Protas Machina Mukanzi, the 3 rd petitioner, adopted his witness statement dated 4 th April 2014 and annextures as evidence and exhibits in court. According to Mukanzi, he joined KAF on 2 nd September 1977 and was assigned service No. 022742. After military training, he was posted to work as a storeman. After his arrest, he was detained at Kamiti Prison under harsh conditions; he was kept in a wet cell without clothes and was denied food for 15 days. He lost his belonging and certificates during his arrest. After discharge, he sought medical attention but due to the long period it had taken, he did not have medical evidence. He was discharged on 31 st January 1983. He relied on the certificate of service as proof of service with KAF.
Allan Sagala Lagoswa, the 9 th petitioner, also adopted his statement dated 4 th April 2014 and exhibits as his evidence before the court. He stated that he joined KAF on 20 th May 1977 and given service No. 022922. He was attached at Nanyuki Airbase as at 1 st August 1981. On 31 st July 1981, after duty, he travelled to Nairobi with friends and arrived at Eastleigh at 9 pm. He did not find his brother and left for town where he spent the night and only learnt about the coup in the morning. He went to Eastleigh airbase and was made to arm himself and proceeded to the city centre but they were attacked on the way. He escaped and went back to the station.
The following morning, he reported at the camp where he was arrested and taken to Kahawa Barracks. They were later transferred to Kamiti Prison and later to Naivasha Prison. They were tortured; kept naked in a dark waterlogged room was denied food for 7 days. He was held for several months and later taken to the court martial on 15/10/82 and charged with mutiny and sentenced the same day to 9 years and later discharged from service. He suffered while in prison and was still feeling the after effects. He was not given medical records when he was released on 15 th October 1988.
Protus Ungayi Milimu, the 2 nd petitioner, testified adopting his statement dated 4 th April 2014 and exhibits as his evidence. He enlisted with KAF on 7 th February 1979 and assigned service No. 024038. After basic military training, he was deployed at the ground to Air defence unit. On 1 st August 1982 he was away from the station when the coup took place. He reported at Jogoo Police Station on 5/8/82 and was immediately arrested and taken to Army Headquarters and later to Athi River prison. He was interrogated and later transferred to Kamiti prison then Naivasha Prison. He was tortured; kept in dark waterlogged cell and denied food and other basic necessities. He was discharged from service on 31 st January 1983. After being discharged, he tried to get employment without success. He also lost his academic certificates. He was still under medication.
George Nyaligu Isemere, the 7 th petitioner, also adopted his witness statement dated 4 th April 2014 and exhibits as his evidence in court. He joined KAF on 12 th September 1979 and assigned service No. 024324. After basic military training, he was posted to work as a fireman. He was arrested and tortured during incarceration. He was later tried at the court martial, convicted and sentenced to 3 years. He lost his property following his arrested.
Peter Manyengo Miheso, the 6 th petitioner did not testify and therefore did not take part in this petition.
D: Respondents’ response
The respondents opposed the petition through grounds of opposition and a replying affidavit sworn by Major Edwin Kibiru Muta (Major Muta) on 2 nd June 2023. Major Muta stated that the petitioners are guilty of laches having instituted the petition more than thirty-two years after the cause of action arose thus, the 2 nd respondent will be prejudiced because its evidence has been lost or degraded while witnesses have either left service or died.
Major Muta denied the alleged violations of rights and fundamental freedoms; denied that the petitioners were members of the Armed Forces and that they were arrested on account of merely being personnel of the Armed Forces. Major Muta stated that if the petitioners were members of the Armed Forces, any arrests were as a result of their participation in the attempted coup, either actively or passively, by obeying illegal orders and arming themselves against the government.
Major Muta again denied the petitioners’ claim that they were arrested without reasonable cause; that they were kept in solitary confinement, tortured or unlawfully discharged from service. He also denied allegations that petitioners were frequently moved from one place of detention to another; that they were kept in cruel, inhuman and degrading conditions or were detained incommunicado.
Major Muta asserted that if the petitioners were servicemen in the Armed Forces, they were subject to the repealed Armed Forces Act (Cap 199) and were entitled to the Constitutional rights and freedoms enshrined under the repealed constitution subject to the limitations specified thereunder.
According to Major Muta, the petitioners were all taken into lawful custody in accordance with section 70 of the repealed Armed Forces Act as read with rule 6 of the repealed Armed Forces Rules of Procedures on account of having been reasonably suspected of participating in the coup. Major Muta stated that the petitioners were sentenced to dismissal from service on account of being found culpable of involvement in the coup after undergoing summary trial before their respective commanding officers. Due process was followed with regard to the arrests, investigations as well as administrative, disciplinary and or penal sanctions applied against the petitioners.
E: Oral evidence
Major Muta testified on behalf of the respondents and adopted his replying affidavit as his evidence. He informed the court that he is the Staff Officer II Records at the Department of Defence Headquarters which keeps the records of retired officers and service members. He had worked at Defence Headquarters since July 2022 but had been in KDF for 19 years. He confirmed that he had not attached any documents to show the records of any of the petitioners. He was also not aware if the petitioners were reassigned to other stations, if they were imprisoned in service prisons in Kenya and would have no records of such imprisonment.
Major Mute told the court that there would be no records on the petitioners’ torture or medical condition while under detention. He was equally not aware of any records regarding the petitioners’ trial in court. He told the court that the Kenya Defence Forces Act does not allow torture and that the petitioners’ records do not exist.
Major Muta stated that retired officers are service members who honourably served and left the service. He did not have the petitioners’ records because documents are destroyed after 10 years. He maintained that KDF does not condone torture of whatever form and that an offender can be dealt with through court martial, summary procedures or the Defence Council can deal with any offenders at any time. According to Major Muta, an offender can be placed under confinement in the Barracks but that is not detention. A service member can be placed in prison if he is to be interrogated and the guard room cannot contain the member.
F: Submissions
Parties filed written submissions which they relied on.
G: Petitioners’ submissions
The petitioners filed written submissions through their advocates. On delay in filing the petition, they argued that there is no limitation period for filing a claim on violation of fundamental rights and freedoms. They relied on the decisions in Dominic Arony Amolo v Attorney General [2003] eKLR; Kamlesh Mansuklal Damji Pattni v Republic [1995] KECA 127 (KLR) and Joan Akinyi Kabasellah & 2 others v Attorney General [2014] eKLR.
The petitioners submitted that there have been decisions in cases filed against the respondents from the same cause of action, including David Gitau Njau & 9 others v Attorney General [2013] eKLR and Peter M. Kariuki v Attorney General [2014] eKLR and it would be discriminatory if this court dismissed their claim on grounds of delay.
The petitioners argued that the respondents’ argument that they will be prejudiced is not correct. The petitioners maintained that the government and public bodies possess institutional succession and perpetuity and, therefore, evidence and records cannot be easily affected by lapse of time. They stated that they could not have pursued justice earlier because of the political situation under the repressive government of the day.
The petitioners cited article 1 of the Convention Against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment and the decisions in Samwel Rukenya Mbura & others v Castle Brewing Kenya Limited & another [2006] eKLR and Republic v Minister for Home Affairs and 2 others Exparte Leonard Sitamze [2008] eKLR on the definition of torture, cruel, inhuman and degrading treatment which they were subjected to.
The petitioners relied on the decision in David Gitau Njau & 9 others v Attorney General [2013] eKLR for the position that their right to freedom from torture and cruel, inhuman or degrading treatment was violated when they were locked in dark waterlogged rooms for several days while naked; being denied food, water, toilet facilities and other basic necessities; being slapped, kicked, gun-butted; frog marched and denied proper medical care. The petitioners maintained that they did not have medical records because they could not have accessed treatment since they were being held incommunicado and for long periods of time.
The petitioners relied on article 25 (a) of the Constitution; article 5 of the United Nations Universal Declaration of Human Rights (UDHR) and Guidelines of Committee of Ministers of the Council of Europe on Human Rights and the Rights against Terrorism, 11 th July 2002, for the proposition that torture, inhuman and degrading treatment are prohibited and there is no justification for it.
The petitioners again relied on the decisions in Ann Njogu & 5 others v Republic [2007] eKLR and Albanus Mwasia Mutua v Republic [2006] KECA 346 (KLR) to submit that their right to human dignity was violated because they were held in detention for months without being arraigned in a court of law; they were dismissed from service without a hearing and their rights as arrested persons guaranteed under article 49 of the Constitution were violated because they were arrested and detained without trial. They argued that their treatment was an affront to sections 48 and 72 (2) of the repealed Armed Forces Act.
The petitioners asserted that the 2 nd respondent’s action of keeping them in incommunicado confinement without trial violated their right to personal liberty and human dignity. They reiterated that the torture they were subjected to while in detention was in violation of their rights guaranteed under article 51 of the Constitution. They relied on the decisions in Njuguna s/o Kimani & 3 others v Reginam [1954] 21 EACA 316; David Gitau Njau ( supra); Peter M. Kariuki v Attorney General [2014] eKLR; Peter Tonny Wambua & 17 others v Attorney General [2017] eKLR and Silla Muhia Kinyanjui & 2 others v Attorney General [2020] eKLR.
The petitioners again submitted that their right to remission of sentence was violated because they were forced to serve unwarranted imprisonment for periods ranging between 8 and 16 months as these were periods for which their sentences could have been reduced as provided under section 46 of the Prisons Act. They argued that failure to remit their sentences amounted to illegal detention thus, violated their rights under sections 70(a), 73(1) and 77 of the repealed constitution and articles 8(3) and 9(1) of the ICCPR.
The petitioners again cited rules 95(1), 96 and 97 of the Prisons Rules and the decisions in David Oloo Onyango v Attorney General [1987] eKLR and Stephen Nderu Njuguna v The Commissioner of Prisons & another [2011] eKLR for the position that denial of remission of sentence without lawful justification violated their right to liberty and they are entitled to compensation.
The petitioners maintained that their right under article 41 of the Constitution was violated because although they were never charged with any offence in a court martial or any court, after release they were dismissed from service. They were also not paid any terminal or redundancy dues and were sent home without payment of any salary, terminal benefits and or pension contrary to the Armed Forces Act and the Armed Forces Standing orders.
On quantum, the petitioners relied on the decisions in Captain (Rtd) Frank Mbugua Munuku v Kenya Defence Forces & another [2013] eKLR; Dominic Arony Amolo (supra); Jennifer Njoroge Muthoni & 10 others v Attorney General [2012] eKLR; Odhiambo Olei v Attorney General civil Case No. 365 of 1995 and Peter Kariuki v Attorney General (Petition No. 233 of 2009) and urged the court to award Kshs. 20,000,000 each as general damages. They also prayed for exemplary damages of Kshs. 5,000,000 each and costs of the petition.
H: Respondents’ submissions
The respondents also filed written submissions through their advocates. The respondents submitted, relying on sections 107 and 109 of the Evidence Act and the decisions in Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] eKLR and Ahmed Mohammed Noor v Abdi Osman [2019] eKLR, that the petitioners did not prove that they served as members of KAF and the Armed Forces.
The respondents argued that the petitioners were guilty of latches because the petition was filed after more than thirty years without plausible reasons; it was an afterthought and affected their (respondents’ rights) guaranteed under article 50 of the Constitution as they were unable to mount a plausible defence. The respondents relied on the decision in Wellington Nzioka Kioko v Attorney General [2018] KECA 858 (KLR).
The respondents urged the court to take into account the fact that as early as 2003, persons aggrieved by acts of the “Moi era” approached courts for redress for alleged violations of constitutional rights and fundamental freedoms before the promulgation of the 2010 Constitution. They relied on Stanley Waweru Kariuki v Attorney General [2013] eKLR; Harun Thungu Wakaba v Attorney General [2010] eKLR and Oduor Ong’wen and 20 others v Attorney General [2011] KEHC 260 (KLR).
The respondents argued that an explanation for the delay is a necessary requirement even if there is no limitation of time for filing constitutional petitions. Reliance was placed on the decisions in Peter Ngari Kagume & 7 others v Attorney General [2009] KEHC 4179 (KLR); Masulal Maganlal Rawal v Maneklal Maganlal Rawal [1989] KEHC 93 (KLR); Abraham Kaisha Kanzika alias Moses Savala Keya t/a Kapco Machinery Services and Milano Investments Limited v Governor Central Bank of Kenya and 2 others [2006] KEHC 3525 (KLR) and James Kanyiita v Attorney General and Another [2012] KEHC 1420(KLR).
They respondents again relied on Black’s Law Dictionary 8 th Edition and article 1 of the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment to argue that the petitioners did not proved torture and that no acts of torture recognised in law were committed against the petitioners. Reliance was placed on Monicah Wangui Wamwere v Attorney General [2019] eKLR and Robert Njeru v Attorney General [2014] eKLR.
The respondents went on to rely on other decisions, including Peter Ngari Kagume & 7 others v Attorney General (supra); Anarita Karimi Njeru v Republic [1979] eKLR and Matiba v The Attorney General Misc. Application No. 666 of 1990 (UR) to argue that the petitioners did not prove the alleged detention; did not show where they were held in custody; for how long; when they were transferred and when they were released.
The respondents argued that the 7 th petitioner admitted in his witness statement that he was tried and convicted by a competent court of law and sentenced to three-years sentence but did not appeal against the conviction and sentence. The respondents maintained that if the petitioners were members of the Armed Forces, their arrest, detention and prison sentences followed the legal process under the applicable laws governing mutineers.
The respondents urged the court to adopt the principles laid in Peter Ngari Kagume & 7 others v Attorney General (supra) and consider the case of Charles Gachathi Mboko v Attorney General [2014] eKLR in the event it is inclined to grant the reliefs sought. They urged the court to dismiss the petition with costs.
I: Determination
I have considered the pleadings; arguments made on behalf of the parties as well as the decisions relied on. The issues for determination are whether the petitioners were members of the armed forces; whether their rights and fundamental freedoms were violated; whether the petition was brough after inordinate delay and what relief to grant.
The petitioners, except Peter Mayengo Miheso, (the 6 th petitioner) who did not participate in these proceedings, stated; averred and deposed that they were members of KAF a branch of the Armed Forces of the Republic of Kenya having been enlisted on various dates and assigned individual service numbers. After initial military training, they were posted to different stations to perform various tasks within KAF and were still working as at 1 st August 1982 during the coup attempt when things turned for the worse against them.
The petitioners told the Court that they were arrested on different dates after the coup attempt, some after they presented themselves to Police Stations and military camps following the announcement to that effect. Some were was arrested within the city centre where they had been commandeered to by their seniors.
The petitioners stated that following their arrest, they were brutally beaten, tortured and locked in waterlogged cells as they were subjected to interrogations. They were taken to Kamiti Prison and later transferred to Naivasha Prison and subjected to cruel and inhuman treatment for several days and months. They were held in crowded cells without food; medical attention and other basic necessities. They were sometimes frog marched, beaten indiscriminately, made to stripped naked while in waterlogged cells and subjected to other inhuman and degrading treatment while being held incommunicado.
According to the petitioners, they were held and interrogated for several months without being produced in a court of law. Some were detained for months and released without trial while others were subjected to court martials and forced to plead guilty. It was the petitioners’ contention that their constitutional rights guaranteed under sections 70(a) 74(1), 72(3) of the repealed Constitution were violated.
The respondents denied that the petitioners were members of the armed forces and, if they were, their arrest was lawful for involvement in the coup attempt. The respondents also denied that the petitioners were tortured, mistreated or subjected to inhuman and degrading treatment. They also denied violating the petitioners’ constitutional rights. The respondents argued that the petitioners were guilty of laches in that they took too long to file the petition.
Based on the above contestations, it is important to determine first, whether the petitioners were members of the armed forces as it was then known.
J: Members of armed forces
The fact that the petitioners were members of KAF was disputed. However, the petitioners stated that they enlisted with KAF, gave the dates they were enlisted; service numbers assigned to each of them and the posts they were assigned to as they served. The petitioners also stated when they were arrested and when they were discharged from service. The petitioners produced extracts of Certificate of Service/Discharge Service from the Kenya Armed Forces issued on various dates attached to their documents in support of the position. They were discharged from the Armed Forces on grounds of service no longer required while others were dismissed.
The respondents did not dispute the service numbers the petitioners were assigned as belonging to KAF. They also did not disown the discharge certificates. It is also important to point out that the respondents did not deny categorically that the petitioners were members of the armed forces. Rather their denial was a qualified one which means it was a mere denial.
In the circumstances, taking into account the petitioners’ evidence, including documentary evidence on record, the conclusion the court comes to, is that the petitioners were indeed members of the armed forces having been enlisted to the KAF branch of the armed forces.
K: Violation of rights and fundamental freedoms
The petitioners averred that they were arrested and detained for prolonged periods without being produced in a court of law. During the detention and confinement, they were beaten, tortured, kept incommunicado, placed in waterlogged cells, denied food and subjected to in inhuman and degrading treatment. These facts were not only stated in the averments in the petition and depositions in the affidavits but also in the petitioners’ oral testimony in court.
The petitioners explained how they were moved from one prison to another between Kamiti and Naivasha Maximum Security Prisons before some of them were later taken before court martials; forced to plead guilty and sentenced. However, production of those petitioners before the court martial was not done within 14 days as the repealed constitution required. Petitioners who were not
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