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Court of AppealDismissedCivil Appeal No. 89 of 2014· [2016] KECA 119 (KLR)

A.K.M.M v E.M.K.K & J.M.K [2016] KECA 119 (KLR)

Court of Appeal of Kenya
4 November 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,301 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a son's claim that his parents tortured him, confirming that torture allegations must be proved to a heightened standard.

What this practically means

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Executive summary

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The Court of Appeal (Makhandia, Ouko and M'inoti, JJ.A) unanimously dismissed this appeal against the High Court's (Majanja, J.) dismissal of a constitutional petition in which the appellant, a lay person acting in person, alleged that his parents had subjected him since the age of 12 to psychological torture and other violations of Article 29 of the Constitution, citing excessive domestic chores, physical abuse, denial of educational opportunity and later abandonment and poverty. The Court affirmed three settled principles: first, standing under Articles 22 and 258 is liberal, and constitutional rights claims may be brought against private individuals as well as the State; second, the party alleging violation bears the evidential burden of proof; and third, because of its gravity, torture must be proved on a standard higher than a preponderance of the evidence but below proof beyond reasonable doubt. Re-evaluating the evidence afresh as a first appellate court, the Court found no proof of assault or torture; the appellant's own cross-examination revealed he was a favoured child whose parents paid for his education and continued supporting him financially as an adult. The Court also contrasted the UN Convention Against Torture, confined to acts by public officials, with Article 29's broader protection, but held that no violation of the latter was demonstrated. The Court endorsed the High Court's direction requiring the appellant to remove from his website infoyote.com scurrilous material about the respondents, holding the learned Judge was justified. Notably, the Court declined the appellant's request for a DNA test and, in unusually discursive dicta, drew lessons on parent-child relationships from Shakespeare's Henry IV and Ephesians 6:4, observing that the appellant required psychosocial support he alone could initiate. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Locus standi and the range of respondents in Bill of Rights litigation

Holding

Standing is liberal under Articles 22 and 258, and constitutional rights claims may be brought against private persons.

Reasoning

The court restated that the 2010 Constitution transformed locus standi, citing Mumo Matemu, and confirmed from Articles 3(1), 19 and 20(1) that rights enforcement lies against individuals as well as the State, citing domestic and South African authority. This disposed of any threshold objection to the appellant's petition being framed against his parents.

p. 5
02

Standard of proof for torture under Article 29

Holding

Torture must be proved to a standard above preponderance of the evidence but below beyond reasonable doubt, and the appellant failed to discharge it.

Reasoning

The court distinguished the UN Convention Against Torture definition, confined to acts by or with the acquiescence of public officials, from Article 29 which covers torture by any person whether physical or psychological. Given torture's gravity, an elevated standard applies; the appellant's own cross-examination showed parental support and no proof of a fractured skull, denial of education or torture. The trial court's dismissal was therefore unimpeachable.

p. 6
03

Precision in pleading constitutional violations under Rule 10 of the Mutunga Rules

Holding

A petitioner must disclose the nature of the violation, though this is satisfied if apparent from the totality of the pleadings.

Reasoning

Applying Anarita Karimi Njeru through the Mutunga Rules, the court held that allegations of violation must be specified with reasonable precision so the respondent and court know what is in issue, but that the requirement is met where, from the totality of the pleadings, the violation is apparent. Here no violation was in fact proved.

p. 5
04

Duty of a first appellate court

Holding

The appellate court must re-evaluate the evidence afresh and reach its own conclusion, allowing for the trial judge's advantage on demeanour.

Reasoning

Citing Selle v Associated Motor Boat Co., the court framed its review function: it re-hears the case on the record, drawing its own conclusions while making allowance for the trial court that saw and heard the witnesses. Applying that standard to the cross-examination record, it found no basis to disturb the finding that no torture was proved.

p. 4
05

Appropriateness of the judicial direction to remove website material

Holding

The High Court's direction to the appellant to remove references to the respondents from his website was justified given the scurrilous material and the discomfort caused.

Reasoning

The appellant challenged the direction as exceeding jurisdiction, but the respondents' counsel defended it on the basis that the negative references on infoyote.com caused considerable discomfort to the respondents, family members and friends. The court, having found no error in the judgment below, did not disturb this aspect of the order, effectively affirming the High Court's exercise of discretion.

p. 3

Legal principles established

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  • Any person may institute proceedings under the Bill of Rights, and such proceedings may be brought not only against the State but also against private individuals, natural or juristic.
  • A party alleging violation of rights bears the evidential burden to prove the violation, pleading it with reasonable precision.
  • Because of its gravity, torture alleged as a violation of fundamental freedoms must be proved to a standard higher than a preponderance of the evidence but below proof beyond reasonable doubt.
  • A first appellate court must re-evaluate the evidence afresh and reach its own independent conclusion while allowing for the absence of the trial court's advantage of observing witness demeanour.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1), 22(2), 22(3), 258, 29, 3(1), 19, 20(1), 48
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 10(1)(2)(d) and (3)
  • UN Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or PunishmentArticle 1

Cases cited (6)

  • Selle & Anor. vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    Civil Appeal No 290 of 2012
  • Randu Nzai Ruwa & 2 Others vs. Secretary, IEBC & 9 Others
    Civil Appeal No. 9 of 2013
  • Rose Wangui Mambo & 2 Others vs. Limuru County Club
    High Court Constitutional Petition No. 160 of 2013
  • Motala & Another vs. University of Natal
    [1995] 3 BCLR 374
  • Anarita Karimi Njeru v R
    (1979) KLR 154
On appeal from
High Court of Kenya at Nairobi
Petition No. 37 of 2014
Jurisdiction invoked
First appellate jurisdiction over the High Court sitting in constitutional (Bill of Rights) jurisdiction; appeal from a petition decided under Article 22 of the Constitution and the Mutunga Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "A.K.M.M v E.M.K.K & J.M.K [2016] KECA 119 (KLR)", Case Analysis (2016). Civil Appeal No. 89 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/119/eng@2016-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.