Samuel Okumu Okwany v Attorney General [2022] eKLR

Key Facts

Issues

• Whether the Petition is time-barred, considering the Respondent's argument of inordinate delay and prejudice to defense due to destroyed records and deceased witnesses, and the Petitioner's claim of safety concerns preventing earlier action.
• Whether the Petitioner is entitled to reliefs including declarations of rights violations, compensation of Kshs. 7,000,000/-, and interest, given the court's findings of unlawful detention and torture.
• Whether the Petitioner's fundamental rights and freedoms, including the prohibition of torture (Article 29(d)), the right to life and human dignity (Article 28), and the right to fair trial (Article 25(a)), were violated by the Respondent's Special Branch Police Officers and unlawful detention at Shimo la Tewa.

Holdings

• Costs of the suit to the Petitioner.
• A declaration be and is hereby issued that the Petitioner's fundamental rights and freedoms were contravened and grossly violated when the Petitioner was detained without trial for one year at the Shimo la Tewa Maximum Security Prison.
• A declaration be and is hereby issued that the Petitioner is entitled to the payment of damages and compensation for the violations and contraventions of his fundamental rights and freedoms under the aforementioned provisions of the constitution.
• Interest on prayer (d) at Court rate from the date of judgment till payment in full.
• The Petitioner be and is hereby awarded Kshs.7,000,000/= as compensation for the violations aforesaid.
• A declaration be and is hereby issued that the Petitioner's fundamental rights and freedoms were contravened and grossly violated by the Respondent's Special Branch Police Officers who were Kenyan Government Servants, agents, employees and in its institutions at Nyayo House Torture Chambers for 32 days.

Remedies

• The petitioner was awarded Kshs.7,000,000 as compensation for the violations of his fundamental rights and freedoms
• Interest on the compensation award at Court rate from the date of judgment until payment in full
• The costs of the legal proceedings were awarded to the petitioner
• A declaration that the petitioner is entitled to the payment of damages and compensation for the violations of his constitutional rights
• A declaration that the petitioner's fundamental rights and freedoms were contravened and grossly violated by the respondent's Special Branch Police Officers at Nyayo House Torture Chambers for 32 days
• A declaration that the petitioner's rights were violated when he was detained without trial for one year at Shimo la Tewa Maximum Security Prison

Monetary Damages

Legal Principles

• The court found the Petitioner's torture allegations satisfied constitutional Article 29(d) and the Convention Against Torture, rejecting the respondent's argument that coup participation justified the violations under Article 29(b).
• The court applied the burden of proof principle under Section 107 of the Evidence Act, finding the respondent failed to demonstrate the Petitioner's certificate of service was forged or non-existent. Section 83 of the Evidence Act was relied upon to affirm the certificate's authenticity.
• The court established that constitutional petitions alleging fundamental rights violations are not subject to statute of limitations per Dominic Arony Amolo case law, though it evaluated whether the delay was unreasonable and prejudicial under James Kanyata and Joseph Mugere precedents.
• The court recognized the special nature of historical injustice cases, citing Lenaola J.'s approach in Njuguna Githuru and Gerald Gichohi, acknowledging transitional justice principles despite the 35-year delay in filing the petition.

Precedent Name

• Booth Irrigation Ltd (No. 2)
• Samwel Rukenya Mburu vs Castle Breweries
• Johnson Gacheru Ngigi v Inspector General of the National Police Service & another
• Fredrick Gitau Kimani v The Honourable Attorney General & 2 others
• Gerald Gichohi and 9 others vs Attorney General
• Joyce Nakacwa vs Attorney General and others
• Civil Appeal No. 268 of 2016
• Center For Rights Education And Awareness vs John Harun Mwau & Others
• Aggrey Stauss Induswe v Attorney General
• James Kanyita Nderitu v Attorney General
• Jeniffer Muthoni Njoroge and 10 others v Attorney General
• Chege Kuria Mwere & 6 others v Attorney General
• Dominic Arony Amolo vs Attorney General
• Moses Mwicigi and 14 others vs IEC and 5 others
• LT. Col. Peter Ngari Karume & Others vs Attorney General
• Albanus Mwasia Mutua v Republic
• Durity vs AG
• Interim Independent Electoral Commission S.C.
• Akusala A. Boniface v OCS Langata Police Station & 4 others
• Packer vs McKenna
• Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others
• Njuguna Githuru v Attorney General
• James Kanyata vs Attorney General and Another
• Joseph Mugere Onoo vs Attorney General
• Charles Gachathi Mboko v Attorney General

Cited Statute

• Evidence Act
• Constitution of Kenya
• Convention Against Torture

Judge Name

Passage Text

• I find that the Petitioner has proved that there was torture and unlawful detention, leading to violation of the Petitioner's rights.
• I therefore in view of the facts of this case find that an award of Kshs. 7,000,000/- would be adequate compensation for the Petitioner.
• In Johnson Gacheru Ngigi v Inspector General of the National Police Service & another (supra) the Court awarded Kshs. 4,000,000/- wherein the petitioner was unlawfully detained and tortured for 32 days.