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ELRCPartially AllowedPetition No 28 of 2013· [2018] KEELRC 808 (KLR)

Francis Maranga Matu v Attorney General [2018] KEELRC 808 (KLR)

Employment and Labour Relations Court of Kenya
22 October 2018
2,172 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded Kshs 3 million to a man tortured and detained without trial in 1982, confirming there is no time limit for constitutional rights claims.

What this practically means

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Executive summary

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The Petitioner, a former Kenya Air Force Major enlisted in 1969, alleged that after the 1 August 1982 coup attempt he was arrested, detained at Naivasha Maximum Prison in solitary confinement for about eight months - stripped naked, without beddings, kept under constant light, served rotten food, denied family communication and never charged - and that on 7 February 1983 his services were terminated without due process. He sued the Attorney General for declarations and damages for violation of his rights against torture, cruel, inhuman and degrading treatment and deprivation of liberty. The Respondent, which initially failed to file a Response and only belatedly participated, led no evidence but argued that the 2010 Constitution could not apply to a 1982/1983 cause of action and that the Petition filed some 30 years later was barred by inordinate delay. The Court framed four issues: applicability of the 2010 Constitution, delay/limitation, violation of rights, and remedies. Applying the Supreme Court's guidance on retrospectivity and endorsing David Gitau Njau, it held the delay objection was unmeritorious and that no limitation period applies to constitutional claims. Finding the Petitioner's unrebuted testimony proved torture, inhuman treatment and unlawful detention without trial contrary to sections 74 and 72 of the retired Constitution, the Court declared the violations and awarded Kshs 3,000,000/- general damages, with costs and interest from the date of judgment.

Key legal issues

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01

Whether the Constitution of Kenya, 2010 applies to a cause of action arising in 1982/1983

Holding

The objection was without merit and moot; the rights alleged to be violated had constitutional grounding under both the repealed Constitution and the 2010 Constitution as inherent and indefeasible rights.

Reasoning

Relying on the Supreme Court's decision in Samuel Kamau Macharia, the Court held that a Court must pay due regard to the language of the Constitution before importing retrospectivity. The Petitioner alleged torture, cruel and inhuman treatment prohibited by section 74 of the retired Constitution, and detention without trial prohibited by section 72; the core content of these rights is replicated in Article 29 of the 2010 Constitution, so the rights were enforceable either way.

p. 3
02

Whether the Petition should be struck out for inordinate delay of about 30 years

Holding

No; the Petition ought not to be struck out on the basis of inordinate delay.

Reasoning

The Court endorsed the reasoning in David Gitau Njau v Attorney General, which declined to follow Peter Ngare Kagume, holding that no limitation period applies to claims founded on fundamental rights and freedoms, and that neither the repealed Constitution nor the 2001 Practice and Procedure Rules impose such a limitation. The political environment prevailing after the 1982 coup also explained the delay, and a plethora of similar petitions were filed only after 2010.

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03

Whether the Petitioner proved violation of his fundamental rights

Holding

Yes; the Court found torture and inhuman treatment and violation of the right to personal liberty.

Reasoning

The Petitioner's unrebuted testimony was that he was held in solitary confinement with lights on throughout, stripped naked, without beddings, served rotten food, denied family communication and detained about eight months without trial. The Respondent led no evidence. Holding the Petitioner in custody without being charged in a competent Court violated the liberty guarantee in section 72 of the repealed Constitution.

p. 3

Legal principles established

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  • A claim based on fundamental rights and freedoms is not subject to a limitation period under the Limitation of Actions Act; inordinate delay does not by itself defeat a constitutional petition.
  • Courts must not import retrospectivity into constitutional provisions whose language is forward-looking, especially where it would divest rights accrued before commencement.

Court orders

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  1. 1.A declaration that the Respondent violated the Petitioner's right not to be subjected to torture and inhuman treatment and right to personal liberty contrary to sections 74 and 72 of the retired Constitution
  2. 2.General damages of Kshs 3,000,000/- for the violations
  3. 3.Costs of the Petition to the Petitioner
  4. 4.Interest on the award from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 29
  • Repealed Constitution of Kenyasection 74(1)
  • Repealed Constitution of Kenyasection 72
  • Repealed Constitution of Kenyasection 84
  • Limitation of Actions Act, Cap 22 Laws of Kenya
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2001 (Legal Notice No. 133 of 2001)

Cases cited (8)

  • Samuel Kamau Macharia and Another vs Kenya Commercial Bank Ltd & 2 Ors
    (2012) eKLR
  • Margaret Wanjiru Ndirangu & 4 others v Attorney General
    (2015) eKLR
  • Peter Ngare Kagume & 7 Ors v Attorney General
    (2009) eKLR
  • Abraham Kaisha Kanzika alias Moses Savala Keya t/a Kapco Machinery Services and Milano Investments Ltd v Governor Central Bank of Kenya & 2 Ors
    Petition No. 180 of 2011
  • James Kanyiita v Attorney General & Ar
  • David Gitau Njau v Attorney General
    (2013) eKLR
  • Dominic Arony Amolo (supra)
  • Albanus Mwasia Mutua v Republic
    Criminal Appeal No. 120 of 2004
Jurisdiction invoked
Original constitutional jurisdiction (petition for enforcement of fundamental rights); Petition transferred from the High Court on jurisdictional grounds by Majanja J on 16 January 2013

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, "Francis Maranga Matu v Attorney General [2018] KEELRC 808 (KLR)", Case Analysis (2018). Petition No 28 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/808/eng@2018-10-22

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