Anjlee Parveen Kumar Sharma v The Hon Attorney General & 3 others
The bottom line
#Kenya's Court of Appeal confirmed families can sue police for unlawful killings even while criminal investigations are still incomplete.
What this practically means
#Executive summary
#Key legal issues
#Ripeness and justiciability of constitutional petitions where investigations are ongoing
The trial court erred in holding the petition non-justiciable; the death was a completed, confirmed fact and the resulting rights violations were actual, not hypothetical. An open police file did not strip the court of jurisdiction.
The ripeness doctrine is an aspect of non-justiciability that bars hypothetical or academic disputes. Here the fatal shooting was admitted by the 2nd respondent, the death was confirmed, and the grievance included the State's prolonged failure to complete investigations. Requiring the petitioner to wait for concluded investigations or a criminal trial equated criminal adjudication with constitutional review and resulted in a denial of justice after years of inaction.
Concurrence of constitutional, civil and criminal proceedings
Victims may pursue multiple legal avenues concurrently; overlapping criminal and civil processes are permitted under section 193A of the Criminal Procedure Code.
Relying on Alfred Lumiti Lusiba and section 193A, the court held that a tortious or constitutional claim is not rooted in prosecution or conviction. Each avenue — tort claim for wrongful death, criminal prosecution, and constitutional petition — serves a distinct purpose. Constitutional courts determine State responsibility, not individual criminal liability, so granting remedies does not interfere with the DPP's discretion.
Applicability of the doctrine of exhaustion to fundamental rights claims
The exhaustion doctrine is discretionary, not compulsory, and does not bar petitions primarily seeking to enforce fundamental rights where alternative remedies are inadequate or illusory.
Following the Supreme Court's decision in Nicholus, the court held that the right of access to court for redress of constitutional violations should not be stifled. Waiting for the outcome of stalled investigations — stalled partly because key officers refused to record statements — would frustrate constitutional accountability and work an injustice.
Appropriate remedy where liability is established on uncontested evidence
The trial court ought to have issued declarations of unconstitutionality and assessed damages; rather than order a re-hearing, the appellate court made the declarations itself and remitted only the assessment of damages.
Given the CCTV footage, autopsy report, death certificate and official police admissions of faulty intelligence, liability was established on the record. A re-hearing would cause unnecessary emotional distress; therefore the court itself issued the declarations and remitted damages assessment to a different judge.
Legal principles established
#- Ongoing or incomplete police investigations and the absence of a prosecutorial decision do not preclude a constitutional court from determining credible allegations of rights violations by State agents, especially where the facts are not in dispute.
- A court's authority to address a controversy arising from an alleged crime does not begin only once a formal complaint is filed and a full trial conducted; claims of right-to-life violations do not depend on the outcome of a criminal trial.
- The State's obligation to investigate suspicious deaths and pursue accountability is triggered as soon as the State becomes aware of the death and is not dependent on a criminal conviction; prolonged inaction may amount to a continuing denial of justice and a breach of articles 26 and 48.
- The doctrine of exhaustion is not absolute where fundamental rights are at stake and alternative remedies are unavailable, ineffective or illusory; victims may pursue tort, criminal and constitutional avenues concurrently.
- Separation of powers and judicial deference to the DPP and Inspector General do not shield State inaction where enforcement of fundamental rights is at stake.
Court orders
#- 1.This appeal is hereby allowed
- 2.The judgment of Ong'udi, J dated 18th November 2022 is hereby set aside
- 3.A declaration that the action of the 1st, 2nd and 3rd respondents through their agents, servants, officials and persons working under their direction and/or instructions in executing and killing the late Mr. Bunty Bharat Kumar Shah was unlawful, illegal and contrary to the Constitution
- 4.A declaration that the action of the 1st, 2nd and 3rd respondents in executing and killing the deceased was contrary to the provisions of the Constitution which provide for the right to life, and right to parental care and guidance in respect of the deceased's minor son, YBS
- 5.The matter be and is hereby remitted to the High Court for assessment of damages before any Judge other than Ong'udi, J
- 6.The respondents shall bear the costs of this appeal
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. 248 of 2018
- Jurisdiction invoked
- First appellate jurisdiction under article 164 of the Constitution; trial court jurisdiction invoked under articles 22, 23 and 165(3)(b) and (d)(ii) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Siddique w/o Arshad Sharif & 2 others v Attorney General & 4 others[2026] KESC 54 (KLR)3 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Anjlee Parveen Kumar Sharma v The Hon Attorney General & 3 others", Case Analysis (2025). Court of Appeal, Nairobi — Civil Appeal arising from Constitutional Petition No. 248 of 2018 (memorandum of appeal dated 3rd February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1470/eng@2025-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.