Kinyanjui & 3 others v Attorney General
The bottom line
#The Court of Appeal dismissed four Freedom Corner torture claims because the petitioners could not prove they were actually tortured, even decades later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge improperly dismissed the petitions due to limitation
- 2.Whether the appellants' affidavits filed in support of their petitions were uncontested and, if so, whether the same was sufficient to prove their claims
- 3.Whether the Society Magazine was admissible in evidence and, if so, whether it was sufficient to prove the appellants' claims for torture and inhuman treatment
- 4.Whether the Monicah Wamwere Supreme Court decision is a binding authority in support of the appellants' claim
- 5.Whether the appellants' appeals should be allowed
Key legal issues
#Limitation of actions in constitutional rights claims
Ground 4 fails: the High Court made no finding imposing limitation, the Attorney-General did not cross-appeal, and the Supreme Court has affirmed that the Limitation of Actions Act does not apply to Bill of Rights claims, though delay must be explained.
The Court found the High Court accepted that no statutory limitation applies to fundamental rights enforcement but required substantiation. Since the Attorney-General did not cross-appeal on limitation, the issue was not open. The Supreme Court in Wamwere v Republic concurred that there is no limitation of time for constitutional rights violations, decided case by case, with inordinate delay a relevant consideration requiring explanation.
Whether Kinyanjui's affidavit evidence was uncontested and sufficient
Although the Attorney-General did not cross-examine Kinyanjui, its ground (iii) in the grounds of opposition clearly challenged the evidence, so the affidavit was in question and Kinyanjui had to prove his assertions under section 107 of the Evidence Act.
The Court distinguished Kinyanjui's case from the other appellants, who were cross-examined. It held that grounds of opposition dealing only with law do not contest facts, but ground (iii) expressly challenged whether violations were committed and whether government was involved. Kinyanjui therefore bore the burden of proof and, producing only a magazine, failed to substantiate torture.
Admissibility and probative value of the Society Magazine
The magazine was inadmissible under section 35 of the Evidence Act as neither the editor nor reporter testified, and in any event it established no nexus with the appellants.
The Court agreed with the learned Judge that the magazine did not meet section 35 requirements. Even taking judicial notice of the Freedom Corner events generally, the specific identity of the appellants as participants could not rest on the magazine; a clear nexus between the appellants and the reported story was required and was absent.
Binding effect of the Monicah Wamwere Supreme Court decision
The decision was distinguishable: Monica Wamwere's participation was common knowledge as Koigi Wamwere's mother, and the Supreme Court accepted her claim on its peculiar circumstances; these appellants failed to prove participation or torture.
The Court acknowledged the Supreme Court consciously accepted the claim despite the evidential gap because it was satisfied those appellants were present and their assembly rights were violated by violent disruption. Here, the trial judge who saw the witnesses was not persuaded, and the Court found no reason to depart from that finding.
Legal principles established
#- There is no limitation of time for filing claims for enforcement of fundamental rights and freedoms, but such claims must be substantiated and inordinate delay must be credibly explained.
- A party alleging torture or inhuman and degrading treatment bears the burden of proving it with cogent evidence; unchallenged affidavit evidence is displaced where the respondent's grounds of opposition clearly challenge the evidence.
- Judicial notice may be taken of the general occurrence of the Freedom Corner events, but the specific identity and participation of individual claimants must be legally established.
- The Monicah Wamwere Supreme Court decision is distinguishable on its facts and does not automatically bind claims by other Freedom Corner participants who failed to prove participation.
Court orders
#- 1.The appeals are dismissed
- 2.Each party to pay their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- Constitutional Petition No. 199 of 2013 (consolidated with Petition No. 223 of 2013)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (constitutional petition); appellants' addendum relied on Article 163(4)(a) reasoning in the Supreme Court's Monicah Wamwere decision
- Consolidated with
- Civil Appeal 104 of 2018
Relief refused
#Allowance of the appeals and award of Ksh. 5 million to each appellant for violation of rights
Appellants failed to discharge the burden of proof; the Monicah Wamwere decision was distinguishable on its own peculiar circumstances
Costs
Each party to pay their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we hereby dismiss the appeals and order each party to pay their own costs. It is so ordered.
We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case by case basis.
Nevertheless, the specific identity of the appellants as persons who participated and who were affected by these events are not matters of judicial notice. They are matters that had to be legally established.
A litigant who initiates a claim in court cannot take anything for granted. He/she must be armed with all his/her arsenals so as to meet their obligation of discharging the burden of proof required of them.
In our view, the Monicah Wamwere decision was decided on its own peculiar circumstances.
Issues in the judgment
#Judge name inconsistency between coram and signature block
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui & 3 others v Attorney General", Case Analysis (2024). Civil Appeal 103 & 104 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.