Francis Maranga Matu v Attorney General [2018] KEELRC 808 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Constitution of Kenya, 2010 applies to a cause of action arising in 1982/1983
The objection was without merit and moot; the rights alleged to be violated had constitutional grounding under both the repealed Constitution and the 2010 Constitution as inherent and indefeasible rights.
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.
Whether the Petition should be struck out for inordinate delay of about 30 years
No; the Petition ought not to be struck out on the basis of inordinate delay.
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holding that no limitation period applies to claims founded on fundamental rights and freedoms, and that neither the repealed Constitution nor the 2001 Practice and Procedure Rules impose such a limitation.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.
Whether the Petitioner proved violation of his fundamental rights
Yes; the Court found torture and inhuman treatment and violation of the right to personal liberty.
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Petitioner in custody without being charged in a competent Court violated the liberty guarantee in section 72 of the repealed Constitution.
Legal principles established
#- 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
#- 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.General damages of Kshs 3,000,000/- for the violations
- 3.Costs of the Petition to the Petitioner
- 4.Interest on the award from the date of judgment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.