Ellen Nyambura Macharia Suing as the Administrator of the Estate of Major Edwin Macharia (Deceased) Svc No. 027108 v Attorney General [2018] KEELRC 2269 (KLR)
The bottom line
#A Kenyan court awarded Kshs. 2 million to the family of an Air Force officer unlawfully detained and discharged after the 1982 coup attempt, even 25 years later.
What this practically means
#Executive summary
#Key legal issues
#Limitation of time in constitutional petitions
The delay of 25 years in filing the petition was excusable because, as a Commissioned Officer of the Kenya Air Force blamed for the 1982 coup attempt, the petitioner could not have brought action earlier
The Respondent sought striking out on grounds of staleness, relying on High Court decisions that the open time limit for constitutional claims can be abused. The Court accepted that delay requires explanation but found the circumstances of the 1982 coup attempt and the petitioner's detention and discharge made earlier action impossible. It declined to strike out the petition.
Violation of constitutional rights of a discharged Air Force officer
Removal from the Armed Forces without due process and for no offence was a grave violation of constitutional rights, warranting general damages of Kshs. 2,000,000
The late Major was detained for six months and discharged on the 'no offence' list. The Court found unlawful incarceration and unsupported discharge violated his rights, considering his loss of livelihood, career stigma and family impact, but found no proof of torture. It exercised its discretion on damages accordingly.
Legal principles established
#- There is no open licence for a party to come to court late in constitutional petitions; delay must be explained
- Assessment of damages is a judicial discretion taking into account prevailing conditions and prior decisions
Court orders
#- 1.Judgment entered in favour of the Petitioner in the sum of Kshs. 2,000,000 being general damages
- 2.The amount to attract interest at court rates from the date of delivery of the judgment until payment in full
- 3.The claim for payment of salaries, allowances, amenities and terminal benefits dismissed
- 4.The Petitioner awarded the costs of the case
- Jurisdiction invoked
- Original constitutional jurisdiction (petition transferred from the High Court on 3rd December 2012; Article 23 enforcement of fundamental rights; specific provision not quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ellen Nyambura Macharia Suing as the Administrator of the Estate of Major Edwin Macharia (Deceased) Svc No. 027108 v Attorney General [2018] KEELRC 2269 (KLR)", Case Analysis (2018). Petition (filed in the High Court on 22nd March 2007, transferred to the Employment and Labour Relations Court on 3rd December 2012; number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2269/eng@2018-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.