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Court of AppealDismissedCivil Appeal No. 189 of 2017· [2019] KECA 437 (KLR)

Kamami & another v Attorney General (Civil Appeal 189 of 2017) [2019] KECA 437 (KLR)

Court of Appeal
6 August 2019
4,578 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal dismissed a torture claim dating to 1992 because the petitioners produced no proof, even though the State never defended itself.

What this practically means

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Executive summary

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The appellants, Michael Maina Kamami and Koigi Wainaina, claimed that on 3rd March 1992, while demonstrating and fasting at Uhuru Park's Freedom Corner for the release of political prisoners, they were brutally attacked by Kenya Police and GSU officers, arrested, and transported to their rural homes, with further violations alleged while camped at All Saints Cathedral until January 1993. They sought declarations and general, exemplary, aggravated and moral damages under Article 29 of the Constitution and section 74 of the repealed Constitution. The High Court (Lenaola, J) dismissed the petition for want of proof, finding no evidence, including medical reports, corroborated the allegations. On appeal, the Court of Appeal framed three issues: limitation, proof of torture, and the trial judge's failure to apply the Milka Wanjiku Kinuthia decision. The court held that there is no limitation period for enforcing fundamental rights, but a petitioner must justify inordinate delay; that the trial judge was entitled to proceed to the merits and showed no bias. Central to the appeal was the principle that even uncontroverted evidence must satisfy the burden of proof on a balance of probabilities; a respondent's failure to rebut does not relieve a petitioner of the duty to prove allegations. Considering the definitions of torture under international and comparative law, the court found no particulars, medical reports, or evidence of treatment demonstrating the alleged physical or psychological suffering, and held the Society Magazine article inadmissible for lack of nexus to the appellants. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Limitation in human rights petitions

Holding

No limitation period applies to petitions enforcing fundamental rights, but inordinate delay requires justification; the judge was entitled to proceed to the merits despite the delay of 22 years.

Reasoning

The court held the issue went to jurisdiction and treated it as a preliminary issue. It agreed with the trial judge that while no limitation statute bars rights petitions, a petitioner must explain delay so the court can assess the interests of justice. The judge was in fact magnanimous in still determining the merits, and the bias allegation was rejected.

p. 4
02

Burden of proof on uncontroverted evidence

Holding

A petitioner must still prove allegations on a balance of probabilities even where the respondent files no effective rebuttal; the burden and standard of proof does not become any less.

Reasoning

Relying on section 107 of the Evidence Act and Haji Asuman Mutekanga, the court held that although uncontroverted evidence may ground judgment, proof to the required standard remains essential. The replying affidavit was unrebutted orally, but the appellants still bore the evidential burden, which they failed to discharge.

p. 5
03

Proof of torture and medical evidence

Holding

Assertions of torture without particulars, medical reports or evidence of treatment do not meet the evidential threshold for finding a rights violation.

Reasoning

After setting out definitions of torture from Black's Law Dictionary, the Convention against Torture, the Greek Case and Suresh v Canada, the court found nothing showing the appellants were present, injured or treated. Absent medical reports or particulars, physical, psychological or mental distress could not be demonstrated; the claims remained mere allegations.

p. 5
04

Admissibility of newspaper articles

Holding

The Society Magazine article was inadmissible because the appellants were not its makers and no nexus between them and the events described was established.

Reasoning

The court agreed with the trial judge that newspaper articles and cuttings are inadmissible, adding that since the appellants were not the makers of the article and it made no reference to them, no relationship or nexus with the described events existed.

p. 5

Legal principles established

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  • There is no limitation period for instituting petitions to enforce fundamental rights and freedoms, but a petitioner must justify any inordinate delay.
  • Non-filing of a defence or response does not divest a petitioner of the duty to prove the case to the required standard; uncontroverted allegations remain mere allegations until proved.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 29(c)
  • Constitution of Kenya, 2010Article 29(d)
  • Constitution of Kenya, 2010Article 29(f)
  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya, 2010Articles 263 and 264
  • Repealed Constitution of KenyaSection 74(1)
  • Evidence ActSection 107

Cases cited (8)

  • Harun Thungu Wakaba & 20 Others vs Attorney General
    [2010] eKLR
  • Milka Wanjiku Kinuthia & 2 Others vs Attorney
    Nairobi Petition Nos. 281 of 2011, 282 of 2011, 337 of 2011 and 338 of 2011
  • Selle vs Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Haji Asuman Mutekanga vs Equator Growers (U) Limited
    Civil Appeal No 7 of 1995
  • Greek Case
    1969 Y.B. Eur. Conv. on H.R. 186
  • Suresh vs Canada (Minister of Citizenship and Immigration)
    2002 SCC 1
  • Frankline Kithinji Murithii vs Loyford Riungu Murithii & 4 others
    [2014] eKLR
On appeal from
High Court of Kenya
Nairobi Petition No. 209 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court in a constitutional (fundamental rights) petition

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, "Kamami & another v Attorney General (Civil Appeal 189 of 2017) [2019] KECA 437 (KLR)", Case Analysis (2019). Civil Appeal No. 189 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/437/eng@2019-08-06

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