Adam Isilu Mutinda v Attorney General [2019] KEELRC 1154 (KLR)
The bottom line
#A former soldier tortured and detained after Kenya's 1982 coup attempt won Kshs 10 million in compensation from the State, decades later.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over military personnel
The ELRC has jurisdiction because the relationship between a soldier and the enlisting department is akin to employer-employee at common law, even though military enlistment is not a contract of employment under the Employment Act.
The respondent argued the claim did not arise from an employment relationship. The court held that although enlistment to the Kenya Defence Forces is not per se an Employment Act contract, a soldier offers services for emoluments, and precedents show the court has handled similar cases by Defence Forces and Police officers. The suit was filed in 2014 before the 2016 Rules, so a Memorandum of Claim was proper.
Competency of form of pleading
The claim met the Anarita Karimi Njeru standard because it pleaded the constitutional provisions breached, the particulars of the breach and the grounds of the suit.
The court applied the Anarita Karimi Njeru precision test. The claimant pleaded the sections of the retired constitution breached, the particulars of how the breach was committed and the grounds of the suit; the respondent was able to understand and answer each allegation in its defence, so the suit was competent in jurisdiction, procedure and form.
Violation of right to liberty under section 72(1)
Prolonged detention and torture before being presented to court violated the claimant's right to liberty.
Though the arrest was founded on reasonable suspicion of a criminal offence, section 72(1) required prompt presentation before court. The certificate of imprisonment showed conviction on 24.9.1982, meaning the claimant endured almost two months of torture before being charged; this uncontroverted evidence established the violation.
Violation of freedom from torture and inhuman treatment under section 74(1)
The torture, denial of food, water and medical care, and degrading treatment violated section 74(1).
The claimant testified that he was stripped naked, paraded, forced to lie on hot tarmac, whipped, denied food and medical attention, kept on lice-infested mattresses, subjected to solitary confinement and suffered a fractured clavicle without treatment. The respondent adduced no evidence to deny these allegations, so the violation was proved.
Violation of fair hearing under section 77(1)
Failure to afford counsel or a hearing on the defence, with sentencing immediately upon a coerced confession, violated the right to a fair hearing.
Section 77(1) required a fair hearing within a reasonable time by an independent and impartial court. The claimant's uncontroverted evidence was that he was not afforded counsel or heard on his defence and was taken to a court martial for sentencing immediately after signing a confession; the respondent adduced no evidence to the contrary.
Legal principles established
#- A suit alleging constitutional violation must set out with reasonable precision the complaint, the provision infringed and the manner of infringement (Anarita Karimi Njeru standard).
- The ELRC is the court best suited to determine disputes between soldiers and their enlisting state department because the relationship is akin to employer-employee at common law.
- Uncontroverted evidence of rights violations, once proved on a balance of probability, establishes the violation.
Court orders
#- 1.Declaration that the claimant's fundamental rights and freedoms under section 72, 74(1) and 77 of the retired constitution of Kenya were violated by the Kenya Army and Prison Officers of the Government of Kenya from 1.8.1982 till 2.9.1985.
- 2.Declaration that the claimant is entitled to payment of compensation of damages for the violation of his fundamental rights and individual freedoms under the retired constitution.
- 3.Judgment entered for the claimant in the sum of Kshs.10,000,000 plus costs and interest at court rates from the date of the judgment.
- 4.No further damages awarded beyond the Kshs.10,000,000.
- Jurisdiction invoked
- Section 84(2) of the retired Constitution; Article 23(3) of the current Constitution; section 12(3) of the ELRC Act; section 49(1) and (3) of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adam Isilu Mutinda v Attorney General [2019] KEELRC 1154 (KLR)", Case Analysis (2019). Not stated in judgment (claim filed 22.4.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1154/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.