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Court of AppealDismissedCivil Appeal (Nakuru High Court Petition No. 24 of 2011 appeal)· [2024] KECA 66 (KLR)

Kimani v Attorney General (Civil Appeal 2 of 2019) [2024] KECA 66 (KLR)

Court of Appeal of Kenya
2 February 2024
4,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the State isn't liable for 1998 attack injuries because the victim couldn't prove the attackers were police officers or report the attack.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nakuru by Henry Mwangi Kimani against the dismissal by Anyara Emukule J of his constitutional petition (Nakuru High Court Petition No. 24 of 2011) claiming compensation for violation of his rights to dignity, security and privacy during an attack on the night of 7th and 8th February 1998 at Njoro/Makutano, allegedly by assailants dressed in administration police uniform during the 1997/98 political skirmishes. The appeal raised eight grounds, essentially contending that the Judge erred in failing to find State liability for the attackers' conduct and the State's inaction. The respondent filed no submissions and did not appear. The Court, sitting as a first appellate court and re-evaluating the evidence, held that Articles 28, 29 and 31 of the 2010 Constitution could not apply retroactively to 1998 events, relying on section 70 of the former Constitution and the Supreme Court's decision in Samuel Kamau Macharia. It affirmed the High Court's finding that the appellant had not proved on a balance of probability that the assailants were State officers, noting that civilians can wear replica police attire. Endorsing Charles Murigu Muriithi and Agricultural Development Corporation v Harjit Pandhal Singh, it held that State liability for non-state actors' attacks arises only on proof of a special relationship assuring police protection or prior warning of an imminent specific attack; the curfew imposed was sufficient protective action. The appellant had also made no report to the police, so the State's redress obligation was not triggered, and the Akiwumi Commission Report alone could not establish liability. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Retroactive application of the 2010 Constitution

Holding

The 2010 Bill of Rights could not be applied to 1998 events; the claim falls to be examined under section 70 of the former Constitution

Reasoning

The Court, citing the Supreme Court's decision in Samuel Kamau Macharia, held that courts must not import retrospectivity into constitutional provisions whose language is forward-looking, especially where that would divest rights legitimately acquired before commencement. The cause of action arose in 1998, before promulgation of the 2010 Constitution, so section 70 of the retired Constitution governs the claim.

p. 4
02

Proof that the assailants were State agents

Holding

Mere allegation that attackers wore administration police uniform, plus the existence of a curfew, did not suffice to prove State agency on a balance of probability

Reasoning

The only direct evidence was the uniform and the curfew argument. The Court held that civilians can access replica police attire, particularly in times of national distress, so more evidence was needed. The trial Judge's finding was affirmed as the appellant failed to prove the attackers were administration police officers.

p. 7
03

State duty to protect against non-state actors

Holding

The general duty to maintain law and order does not of itself impose liability; liability crystallises only in special individualised circumstances

Reasoning

Relying on Charles Murigu Muriithi and Agricultural Development Corporation v Harjit Pandhal Singh, the Court endorsed the position that the duty of security is owed to the public at large. Liability arises only where there was an assurance of police protection from a special relationship, or prior information of an imminent attack against specific persons. Here, the State's curfew response to known tensions was sufficient; no specific report of an attack targeted at the appellant was made.

04

State obligation to provide redress channels

Holding

No breach of the redress obligation was established because the appellant never made a report to the police or other agency

Reasoning

The State's duty includes providing remedial mechanisms after violations. However, the duty is triggered by an actionable complaint. Since the appellant made no official report, the State could not be faulted for inaction; had a report been made and ignored, the outcome might have differed.

p. 8
05

Evidentiary value of the Akiwumi Commission Report

Holding

A commission report cannot alone establish State liability; the claimant must link the report's findings to his specific grievances

Reasoning

Counsel urged reliance on the Akiwumi Report to infer State inaction. The Court held that reports alone cannot found a finding of State responsibility; a party must establish the nexus between the report's findings and its own circumstances, for example by lodging a police report or testifying before the Commission.

p. 8

Legal principles established

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  • The 2010 Bill of Rights cannot be applied retroactively to violations occurring before promulgation absent retrospective language; pre-2010 claims are examined under section 70 of the former Constitution
  • State liability for failure to protect requires proof of conduct attributable to the State and a breach of a legal obligation of the State
  • State liability for attacks by non-state actors arises only where there is a special relationship assuring police protection, or prior information/warning of imminent violence coupled with failure to act
  • A victim must have made an actionable complaint or report; only where a report was made and no action taken can the State be said to have failed its redress obligation
  • Commission reports alone cannot found a finding of State liability; a party must establish the nexus of the report's findings to its own grievances

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 29, 31
  • Constitution of Kenya, 1963 (former Constitution)Sections 14(a), 70
  • Government Proceedings ActSection 4
  • Evidence ActSection 79(1)
  • Police Act (repealed)Section 14(1)
  • Court of Appeal Rules, 2022Rule 31(1)(a)
  • International Covenant on Civil and Political Rights (ICCPR)Articles 2, 6, 7, 9; General Comment No. 31
  • Universal Declaration of Human RightsArticles 3, 12
  • African Charter on Human and Peoples' RightsArticles 4, 5, 6

Cases cited (6)

  • Attorney General & 2 others vs. Independent Policing Oversight Authority & another
    [2015] eKLR
  • Samuel Kamau Macharia & another vs. Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Charles Murigu Muriithi & 2 others vs. Attorney General
    [2019] eKLR
  • Agricultural Development Corporation vs. Harjit Pandhal Singh & another
    [2019] eKLR
  • Velasquez Rodriguez vs. Honduras
    Judgment of 29th July 1988
  • Osman vs. The United Kingdom
    (87/1997/871/1083), Judgment of 28th October 1998
On appeal from
High Court of Kenya, Nakuru
Nakuru High Court Petition No. 24 of 2011
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 31(1)(a) of the Court of Appeal Rules, 2022); appeal against dismissal of a constitutional 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, "Kimani v Attorney General (Civil Appeal 2 of 2019) [2024] KECA 66 (KLR)", Case Analysis (2024). Civil Appeal (Nakuru High Court Petition No. 24 of 2011 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/66/eng@2024-02-02

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