Mutai & 9 others v Attorney General (Civil Appeal 95 of 2016) [2019] KECA 125 (KLR)

The court noted it was common ground the respondent filed no replying affidavit but only grounds of opposition. Relying on High Court authority (Kitur; Nyakundi), it held that an affidavit is sworn evidence occupying a higher pedestal than grounds of opposition. Since no cross-examination was directed and no reply filed, the facts averred stood admitted; the judge could not become the respondent's advocate by questioning unchallenged evidence, nor apply a standard higher than balance of probability.

Rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 permits hearing by affidavits, written submissions or oral evidence, placing affidavit evidence on the same pedestal. The judge failed to exercise his discretion to direct oral evidence or cross-examination, so had no reason to disparage the affidavits. Sworn testimony carries the same perjury consequences as oral evidence. Medical evidence went to assessment of damages, not credibility.

The cause of action arose in 1982; the last appellant was released in 1987; the petition was filed in October 2012. Unlike petitioners in Oyugi, Wakaba and Gichohi who explained their delay, the appellants gave no reasons in their affidavits; counsel's explanations in submissions were mere arguments. Even taking judicial notice of the Moi regime, no explanation was given for not filing after 2002. Delay prejudices the respondent's right to a fair trial under Article 50.

The court reproduced section 46 and held that remission is credited on admission and may only be lost in the specified circumstances of subsections (3) and (4). The reason for losing remission was specially within the Prisons Department's knowledge; absent a replying affidavit, no justification was given. The learned judge erred in holding that remission was at the absolute discretion of the Commissioner of Prisons.

Section 102(6) of the repealed Armed Forces Act mandates dismissal upon conviction and sentence of imprisonment by the Court Martial. Those convicted of mutiny could not maintain an unfair dismissal action. The 3rd, 4th and 5th appellants, released without charge, were vindicated, but their claim was independent and should have been pursued under the Employment Act; no relief was claimed in the petition.

Article 25(a) makes freedom from torture non-limitable, so disciplined forces members are not precluded from the right. The court did not doubt the appellants suffered the alleged treatment, but they bore the obligation to avail evidence proving the extent of injury for assessment of damages; absent such evidence only a nominal global award of Kshs. 2 million per appellant would have been appropriate.

The appellants alleged bias and unfairness in their arraignment, but no proceedings of the court martial were placed before the appellate court. The evidential gap meant the court could not conclude the right to a fair trial was denied, so the trial judge's dismissal of this head of claim stood.