Charles Murigu Muriithi & 2 others v Attorney General [2019] KECA 246 (KLR)
The bottom line
#Kenya's Court of Appeal ruled the State isn't automatically liable for violence losses unless you can prove police were specifically warned or ignored known threats.
What this practically means
#Executive summary
#Key legal issues
#Whether the State owed the appellants a specific duty to protect their lives and property from post-election violence
No specific duty was owed; the duty is general to the public, and the appellants failed to establish prior information given to police, a report of the attack, or a special relationship activating a duty of care.
Reading section 70 of the former Constitution with section 14(1) of the repealed Police Act, the court held that the duty to maintain law and order and protect life and property is owed to the public at large. A specific duty crystallizes only where there is a special relationship, an assurance of protection, or prior information or warning of violence against specific persons or areas. Given the police-to-population ratio, it is unrealistic to expect police to guard every individual. No report to Eldoret Police Station was proved; the OB extract bore no date or endorsement and its authenticity was doubtful.
Whether section 75 of the former Constitution was violated
Section 75 concerned compulsory acquisition of property and had no application to destruction by riotous mobs.
The court found section 75 protected individual citizens against State arbitrary deprivation of private property without adequate compensation, and thus had no application where property was destroyed by private actors during the 2007 violence. The court below had likewise found no application. The appellant's situation was damage caused by a riotous gang, not compulsory acquisition by the State.
Whether the Constitution, 2010 applied to the 2007 events
No; the rights created under the 2010 Constitution do not apply retroactively to events preceding its promulgation unless recognized under the previous Constitution.
The post-election violence occurred in December 2007, before the promulgation of the 2010 Constitution. The court agreed with the High Court that Articles 27(5), 29, 31, 39 and 40 of the 2010 Constitution did not apply retroactively, and the appeal had to be examined under sections 70 and 75 of the former Constitution under which the petitions were brought. The court also declined to follow Rumba Kinuthia, Pradhan and Marete as those cases involved torture by State agents, not attacks by private mobs.
Whether the State could be liable for damages caused by mob violence absent proof of negligence or acquiescence
No strict liability arises; liability requires proof of a specific duty of care, ignored information of impending attack, negligent or deliberate failure to protect, or State creation of the insecurity.
Following Agricultural Development Corporation v Harjit Pandhal Singh, the court endorsed the principle that a limitless duty to protect every citizen would open floodgates and be impracticable. Because there is no common law right of recovery for damages caused by mob violence, the Government is liable only where reasonable diligence by police could have prevented the damage, where there was implicit official acquiescence, a statutory basis for liability, or police indifference. Imposing liability on the general duty would introduce strict liability at a utopian level.
Legal principles established
#- The State's constitutional and statutory duty to maintain law and order and protect life and property is owed to the public at large, not to any particular individual; a specific duty arises only in special individualized circumstances such as prior information of impending violence against specific persons or property, or a special relationship or assurance of protection.
- The State may be held liable for violations of Bill of Rights rights occasioned by non-state actors where the duty of care is properly activated, to be determined on the facts of each case.
- Mere guarantee of rights under section 70 of the former Constitution and the police's general statutory mandate under section 14(1) of the Police Act do not per se impose liability on the Government for damage caused by mob violence or civil disorder.
Court orders
#- 1.Appeal dismissed
- 2.No orders as to costs
- On appeal from
- High Court at Nairobi
- Constitutional Petition No. 113 of 2009 (consolidated with Petition No. 44 of 2009 and Petition No. 48 of 2012)
- Jurisdiction invoked
- Section 84(7) of the former Constitution, permitting appeal as of right from a High Court determination on alleged contravention of rights and fundamental freedoms
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chepng’ok & 3 others (Petitioning on Behalf of Members of the Ndorobo Community Registered as Kiboroa Self - Help Group) v National Land Commission & 4 others (Environment and Land Petition 1(B) of 2024) [2025] KEELC 4681 (KLR)[2025] KEELC 4681 (KLR)17 Jun 2025
- George Karisa Fondo & 19 others v Said Ali Omar & 17 others [2021] KEELC 4296 (KLR)[2021] KEELC 4296 (KLR)19 Feb 2021applied
Cite this brief
#Cite this brief
Caselaw, "Charles Murigu Muriithi & 2 others v Attorney General [2019] KECA 246 (KLR)", Case Analysis (2019). Civil Appeal No. 258 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/246/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.