Paul K. Waweru & 4 others v Attorney General & 2 others [2016] eKLR

Key Facts

Issues

• The court assessed if the applicants were unfairly excluded from compensation compared to other recognized internally displaced persons under Article 27 (equality and non-discrimination) of the Constitution.
• The court determined whether the State breached its obligation to protect citizens from the 2007/2008 post-election violence, leading to violations of constitutional rights including security, property, and socio-economic rights.
• The court evaluated the appropriate form of compensation (land or monetary) for the 312 genuine victims identified after vetting, considering existing government frameworks.

Holdings

• The 312 genuine IDPs will be compensated under the existing government framework for post-election violence victims. The court declined to order specific monetary amounts or land allocations, as the applicants did not justify deviations from the established compensation criteria.
• Only 312 applicants were found to be genuine internally displaced persons (IDPs) after a vetting process conducted by the government. The remaining 1,133 applicants were excluded due to fraudulent claims, duplicate identities, and lack of documentation. The court dismissed their claims for compensation.
• The court held that the State cannot be held liable for the 2007/2008 post-election violence as the applicants failed to demonstrate that the State had prior knowledge of the violence and negligently failed to act. The court emphasized that the State's duty to protect is activated only if there was prior information of specific threats and a breach of duty of care.

Remedies

• The court directed that each party shall bear their own costs in relation to this matter.
• The court ordered the 2nd Respondent to compensate the 312 genuine internally displaced persons (IDPs) identified through the government's vetting process, in accordance with the existing compensation framework, within 90 days of the judgment. This includes monetary compensation and resettlement as provided for other victims of the 2007/2008 post-election violence.

Legal Principles

• The court held that the state can only be held liable for non-state actors' actions if it breached its duty of care by negligently or deliberately failing to act on prior knowledge of threats. The applicants failed to demonstrate such a breach in this case.
• The court recognized the state's duty of care to protect citizens from violent acts that could infringe constitutional rights, as established in the Charles Murigu Muriithi case. It emphasized that the state's liability for actions of non-state actors requires proof of prior knowledge and failure to act.

Precedent Name

• Anarita Karimi Njeru v The Republic
• Charles Murigu Muriithi and 2 Others v Attorney General
• Mumo Matemu v Trusted Society of Human Rights Alliance and 5 Others

Cited Statute

Judge Name

Passage Text

• The court directed that the 312 verified victims be compensated through the existing government framework, rejecting specific land or monetary awards as the applicants failed to justify a different standard.
• The court found that only 312 of the 1,445 applicants were genuine internally displaced persons after vetting revealed 40 repeated names, 18 shared identity cards, and 117 already compensated individuals.
• The court held that the State's duty to protect constitutional rights is activated only if it is demonstrated that police or other state agencies had prior knowledge of imminent danger and failed to act, leading to rights violations.