Patrick Chege Kinuthia & 2 others v Attorney General [2015] eKLR

Key Facts

Issues

• The court examined whether the Petitioners' right to property under Section 75 of the Repealed Constitution was violated by state agents instigating tribal violence between 1992–1998, leading to destruction of homesteads, farms, and businesses. The Petitioners claimed their properties were forcibly taken or destroyed without compensation, but the court found insufficient evidence to prove compulsory acquisition by the state or specific state actors.
• The Petitioners argued the state failed its duty under Section 70 to protect them from violence, leading to displacement. The court acknowledged the general obligation but found the Petitioners' claims lacked specific evidence of state negligence or actionable conduct.
• The court assessed if the Petitioners' right to life under Section 71 was violated by the deaths of relatives during tribal violence. While death certificates were submitted, the court noted inconsistencies (e.g., deaths from stroke, old age) and lacked evidence linking all fatalities to state instigation or the tribal clashes as alleged.
• The Petitioners alleged discrimination by state agents due to their ethnic origin and political opposition to the one-party regime. The court found no specific evidence identifying responsible state actors or demonstrating differential treatment as required by Section 82(2).
• The Petitioners claimed they were tortured during the tribal clashes, holding the state liable for their injuries. The court dismissed this due to lack of evidence detailing who, how, or when the alleged torture occurred, and the submitted hospital photos lacked context or corroboration.

Holdings

• The court dismissed claims of violations of freedom of religion, expression, and movement under Sections 78, 79, and 81 of the Repealed Constitution due to a complete absence of supporting facts or evidence.
• The court found no sufficient evidence to establish a violation of the right to life under Section 71 of the Repealed Constitution. Death certificates provided by the petitioners showed causes unrelated to tribal violence and failed to demonstrate a clear nexus between the deaths and state instigation.
• The court determined that the petitioners failed to prove a violation of the right to property under Section 75 of the Repealed Constitution. The claim was based on alleged destruction of property during tribal clashes, not compulsory acquisition, and lacked sufficient evidence of state involvement or ownership documentation.
• The court found no proof of a violation of the right to protection from torture under Section 74 of the Repealed Constitution. The petitioners provided no details on who, when, or how the alleged torture occurred, and photographs submitted lacked contextual evidence.
• The court concluded that the petitioners did not establish a violation of the right to protection from discrimination under Section 82 of the Repealed Constitution. The allegations of ethnic-based victimization by state agents lacked specific evidence identifying responsible parties or discriminatory acts.

Remedies

• Leave to appeal was granted to the Petitioners, allowing them to challenge the dismissal decision in a higher court. The judgment explicitly states that appeal rights are exercisable as of right.
• The Court dismissed the petition due to insufficient evidence and procedural deficiencies. The petition was described as 'omnibus' and lacked individualized claims or proper documentation to support the allegations of rights violations.
• The Court ordered that each party bear their own costs, meaning neither the Petitioners nor the Respondent would be required to cover the other's legal expenses for this case.

Legal Principles

• The judgment highlights that the Petitioners did not provide sufficient evidence to establish violations of their fundamental rights, particularly under Sections 70, 71, 74, 75, and 82 of the Repealed Constitution. The court applied the principle that claimants must demonstrate specific, uncontroverted evidence of state actions causing harm, as outlined in cases like Annarita Karimi Njeru vs Republic and Chaudhari & Chatuverdi's Law of Fundamental Rights.
• The court reiterated that constitutional claims require a high standard of proof, including specific details about the state agents involved, the nature of the violation, and the causal connection between state actions and the alleged harm. The Petitioners' lack of documented evidence (e.g., title deeds, verified death certificates) and failure to particularize their claims led to dismissal under this standard.
• The judgment references the need for precise and individualized pleadings in constitutional cases, citing cases like Mumo Matemu vs Trusted Society of Human Rights Alliance. The Petitioners' collective, generalized approach to representing 36,000 claimants without individualized affidavits or verified details was deemed procedurally inadequate.

Precedent Name

• Charles Murithii & 2 Others vs Attorney General
• Kenya Bus Service Ltd & 2 Others vs Attorney General & 2 Others
• Kanshanshi Mine PLC vs Maini Joseph Mudimina & Others
• Pravin Bowry vs Ethics and Anti-Corruption Commission
• Matiba vs Attorney General
• Annarita Karimi Njeru vs Republic

Cited Statute

Judge Name

Passage Text

• The Court dismissed the omnibus petition for shoddy pleadings and evidence but granted leave to individual claimants to file separate petitions with specific facts.
• The Court noted inconsistencies in death certificates, with some deaths attributed to causes like stroke, anaemia, or old age, and concluded not all deaths were connected to tribal clashes.
• The Petitioners claimed that their properties were destroyed out of violence instigated by State agents, but the Court found that none of the Petitioners had claimed their property was compulsorily acquired under Section 75 of the Repealed Constitution.