Kamami & another v Attorney General (Civil Appeal 189 of 2017) [2019] KECA 437 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation in human rights petitions
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.
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.
Burden of proof on uncontroverted evidence
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.
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.
Proof of torture and medical evidence
Assertions of torture without particulars, medical reports or evidence of treatment do not meet the evidential threshold for finding a rights violation.
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.
Admissibility of newspaper articles
The Society Magazine article was inadmissible because the appellants were not its makers and no nexus between them and the events described was established.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.