Estate Of Cpt Kariuki Kingaru Murebu (Dcd) & 8 others v Attorney General [2014] KEELRC 1356 (KLR)
The bottom line
#A Kenyan court ruled that Kenya Air Force officers detained and dismissed without trial after the 1982 coup attempt were wronged, awarding each Kshs. 8 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the arrest and detention of the men in uniform violated Section 72 (personal freedom) and Section 74 (protection from inhuman treatment) of the retired Constitution
Yes. The men were rounded up and confined for up to seven months, far beyond the 14-day/24-hour limits in Section 72, and were subjected to torture and inhuman and degrading treatment
The retired Constitution limited custody to 14 days for capital offences and 24 hours for others, and required prompt information of reasons for arrest. The uncontroverted affidavits showed the men were detained for up to seven months without trial, held in congested cells, beaten and denied medical attention. The Respondent filed no reply and did not attend the hearing, leaving the evidence unchallenged. The Court therefore found the arrest, detention and torture unconstitutional and unlawful.
Whether the discharge and dismissal of the men in uniform breached the safeguards in the Armed Forces Act (Cap. 199), including Section 72 on prompt investigation
Yes. The men were detained without prompt investigation, most were discharged without trial, and the two who faced Court Martial did not receive fair proceedings
Section 72 of the Armed Forces Act required investigations without unnecessary delay and, in default, release. The men were held up to seven months and discharged straight from prison without trial. Only Kabuthi and Muoki faced a Court Martial: Kabuthi was dismissed without being heard despite pleading not guilty, and the record of Muoki's guilty plea was not produced, with the Court unable to rule out coercion. The Court Martial's refusal to allow preparation time was capricious. Their removal, dismissal and discharge were therefore unconstitutional and unlawful.
What compensation is appropriate for the established violations
A global award of Kshs. 8,000,000 to each Petitioner as general damages, the Court finding no basis for the Petitioners' itemised tabulations
Although the Petitioners submitted a detailed quantum for each man in uniform, the Court could not find a basis for the tabulations. Rather than adopting the itemised claims, it exercised discretion to award a uniform global figure of Kshs. 8,000,000 to each Petitioner as general damages for the violations found, together with costs of the Petition against the Respondent.
Legal principles established
#- Even in responding to a serious national threat such as the 1982 attempted coup, those pursuing perpetrators were under a duty to observe the rules of natural justice and guard the rights of disciplined forces
- The Armed Forces Act contained elaborate safeguards in handling disciplinary cases against officers, which must not be disregarded by superior officers
- Uncontroverted affidavit evidence stands, and where detention for up to seven months without trial and discharge without hearing is shown, the rights of servicemen under the Constitution and the Armed Forces Act are violated
Court orders
#- 1.A declaration that the arrest, detention and torture of the men in uniform by the Respondent was unconstitutional and unlawful
- 2.A declaration that their removal, dismissal and discharge from the Kenya Air Force service and the Armed Forces was unconstitutional and unlawful
- 3.An award of a global figure of Kshs. 8,000,000 to each of the Petitioners as general damages for the violations of the rights and freedoms of the men in uniform
- 4.The Respondent to meet the costs of the Petition
- Jurisdiction invoked
- Constitutional petition under the retired Constitution for violation of fundamental rights and freedoms (Sections 72, 74 and 77), transferred to this Court by order of Majanja J on 8th November 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Attorney General v W.O.1 Samuel Chege Gitau & 283 others (Civil Appeal E093 of 2021) [2023] KECA 1386 (KLR)[2023] KECA 1386 (KLR)24 Nov 2023
- Peter Tonny Wambua & 17 others v Attorney General[2017] KEHC 9162 (KLR)26 Jul 2017
- Petitioner (Senior Lecturer, University of Nairobi School of Law) v Attorney General[2016] KEHC 7408 (KLR)29 Feb 2016
Cite this brief
#Cite this brief
Caselaw, "Estate Of Cpt Kariuki Kingaru Murebu (Dcd) & 8 others v Attorney General [2014] KEELRC 1356 (KLR)", Case Analysis (2014). Petition No. 228 of 2008 (Constitutional Application, transferred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1356/eng@2014-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.