Fredrick Mwaniki Musee & 4 others v Attorney General & 2 others [2019] KEELRC 2059 (KLR)
The bottom line
#A Kenyan court awarded five ex-police officers Kshs.1.1 million each for torture during detention, but refused damages for malicious prosecution and unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Torture and inhuman treatment contrary to section 74(1) of the repealed Constitution
Claimants proved on a balance of probability they were detained 15 days and tortured to force confessions, violating section 74(1); each awarded Kshs.1,000,000 under section 84(2)
Three Claimants testified consistently on arrest, 15-day detention, torture by beating, hanging between tables, dipping in river water and detention in waterlogged cells. The defence tendered no evidence, so the sworn testimony was unrebutted. Lack of medical evidence did not negate the consistent oral testimony. Prolonged detention beyond 24 hours without cause established the constitutional violation entitling each Claimant to damages.
Malicious prosecution
Claim dismissed; police had reasonable and probable cause to suspect the Claimants
The tort requires proof of prosecution instituted by the defendant, favourable termination, absence of reasonable and probable cause, and malice. The Claimants were the officers guarding the armoury on the night of the theft, which entitled the police to harbour reasonable suspicion that they stole or failed to prevent the theft. With reasonable and probable cause established, the claim failed despite the acquittal.
Unfair and unlawful termination of employment
Not proved; the dismissal by letter of 12.8.2003 effective 30.9.2003 was not shown to be unfair
The Claimants never produced any evidence of a contract showing that termination by more than one month's notice was not permitted. Having failed to discharge the burden of proof on a balance of probability, the claim of unfair dismissal failed, and reinstatement was in any event barred by the three-year rule in section 12 of the Employment and Labour Relations Act.
Withheld half salary during interdiction
Awarded at Kshs.105,000 per Claimant (21 months x Kshs.5,000)
The Claimants were interdicted on half salary from October 2001 to 24.6.2003 when the interdiction was lifted after acquittal. Computing 21 months at the withheld Kshs.5,000 per month, the court granted Kshs.105,000 each. The claim for backdated salary review arrears from 1.7.2003 was declined because particulars were not provided.
Legal principles established
#- Uncontroverted sworn evidence may be accepted even where medical or documentary evidence is absent
- Detaining a suspect beyond 24 hours to force a confession violates the right to liberty and freedom from torture and inhuman or degrading treatment under section 74(1) of the repealed Constitution, attracting damages under section 84(2)
- The elements of malicious prosecution as established in Kagame v Attorney General, including reasonable and probable cause and malice
- The ELRC lacks power to order reinstatement where more than three years have lapsed since separation
Court orders
#- 1.Declaration that the Claimants' rights to liberty and freedom from torture and inhuman or degrading treatment were violated
- 2.General damages of Kshs.1,000,000 to each Claimant for torture and inhuman treatment
- 3.Kshs.105,000 to each Claimant for withheld half salary during the 21-month interdiction
- 4.Total judgment of Kshs.1,105,000 per Claimant
- 5.Costs and interest at court rate from the date of judgment
- 6.Award to be subject to statutory deductions
- Jurisdiction invoked
- Article 162(2)(a) and Article 165(5) of the Constitution of Kenya, 2010 (employment matters transferred to this Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fredrick Mwaniki Musee & 4 others v Attorney General & 2 others [2019] KEELRC 2059 (KLR)", Case Analysis (2019). Not stated in the judgment (Criminal Case No. 2125 of 2001, Meru referenced only as the underlying prosecution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2059/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.