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ELRCDismissedPetition (filed 14th July 2017)· [2021] KEELRC 1191 (KLR)

Wilfreda Mary Achieng’ Odendo & another [both suing as the Administrators of the Estate of the Late Patrick Odendo Oyundi] v Kenya Defence Forces & another [2021] KEELRC 1191 (KLR)

Employment and Labour Relations Court
23 July 2021
2,661 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family's claim over 1982 coup-related detention because they brought no evidence—claims need proof, not just allegations.

What this practically means

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Executive summary

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This petition was filed on 14th July 2017 by the administrators of the estate of Patrick Odendo Oyundi, allegedly a Lieutenant-Colonel in the Kenya Armed Forces arrested, detained without trial and tortured after the failed coup attempt of 1st August 1982, and dismissed with loss of terminal benefits. He died in 1993; his wife, who later also died, and his son prosecuted the petition. The Petitioners sought declarations of violations of liberty and freedom from torture, inhuman and degrading treatment, a declaration that the dismissal was unlawful, payment of retirement, terminal and pension benefits, general damages, reinstatement of rank and honours, and costs. The Respondents denied Oyundi was ever a member of the Defence Forces, denied the arrests, detention and torture, raised the absence of evidence due to effluxion of time, and invoked Section 90 of the Employment Act and Section 5 of the Public Authorities Limitation Act. Hearing proceeded on affidavits and the record after Covid-19 changed the mode of hearing. The Court reviewed the line of authorities arising from the 1982 insurrection, including Peter M. Kariuki (damages enhanced to Kshs. 15 million and conviction quashed), Wellington Nzioka Kioko (dismissed for inordinate delay and paucity of evidence), Danish Gumbe Osire, Joel Bernard Lekukuton and Peter Tonny Wambua. It found the wife's affidavit gave no reason for the delay and contained no evidence of Oyundi's employment, detention, torture or consequent illness. The Court held the petition could not be granted on bare statements, stressed equal treatment of ex-soldiers and justice served evenly, and urged the Attorney-General to establish a transitional justice settlement mechanism. The petition was dismissed for paucity of evidence with no order on costs.

Key legal issues

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01

Sufficiency of evidence of constitutional violation

Holding

The Petition fails because the Petitioners did not adduce any evidence that Oyundi was a soldier, was detained and tortured, or was unlawfully dismissed.

Reasoning

The affidavit of the deceased's wife contained only documents establishing the administrators' authority, nothing on the alleged violations. The Respondents' replying affidavit denied Oyundi was ever a member of the Kenya Defence Forces and raised evidential gaps which the Petitioners made no attempt to fill. Without such evidence the Court could not grant the prayers based on bare statements in the Petition.

p. 3
02

Inordinate delay and explanation

Holding

The delay of over 30 years was unexplained and weighs against the Petition.

Reasoning

The Petition was filed about 24 years after Oyundi's death and about 34 years after the alleged violations. Unlike other petitions arising from the 1982 coup attempt, the wife's affidavit gave no reason for the delay and did not even invoke the unconducive political atmosphere accepted by other courts as an explanation for delay.

p. 3
03

Equal treatment of ex-soldiers and transitional justice

Holding

Courts should treat former soldiers equally, but claimants must adduce adequate evidence; the Attorney-General should establish an extra-judicial settlement mechanism.

Reasoning

The court observed inconsistent outcomes between Kariuki (commander, awarded and enhanced damages) and lower-ranked soldiers like Kioko (dismissed). It urged the Attorney-General to establish a collective negotiation and settlement mechanism for transitional justice, noting that judicial dismissal or withdrawal of such cases does not correct the historical injustice.

p. 4

Legal principles established

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  • There is no statutory time limit for filing constitutional petitions alleging violation of rights, but a petitioner must explain delay.
  • Claimants alleging 1st August 1982 coup-related violations must avail adequate supporting evidence for courts to serve justice evenly.
  • Similarly situated ex-soldiers should be treated equally by the courts.

Court orders

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  1. 1.The Petition is declined
  2. 2.No order on the costs

Authorities

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Legislation

  • Armed Forces Act[repealed]
  • Employment ActSection 90
  • Public Authorities Limitation ActSection 5
  • Constitution of Kenyarepealed and current

Cases cited (7)

  • Peter M. Kariuki v. the Attorney-General
    Nairobi H.C.C.C No. 403 of 2006
  • Peter M. Kariuki v. the Attorney-General
    [2014] e-KLR
  • Wellington Nzioka Kioko v Attorney-General
    Nairobi H.C. Petition No. 517 of 2013
  • Wellington Nzioka Kioko v. the Attorney-General
    [2018] e-KLR
  • Danish Gumbe Osire v Cabinet Secretary Ministry of Defence & Another
    Petition 572 of 2013, [2017] e-KLR
  • Joel Bernard Lekukuton & 4 others v. the Attorney-General
    [2017] e-KLR
  • Peter Tonny Wambua & 17 Others v the Attorney-General
    [2017] e-KLR
Jurisdiction invoked
Constitutional petition for enforcement of Bill of Rights (repealed and current Constitution of Kenya)

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, "Wilfreda Mary Achieng’ Odendo & another [both suing as the Administrators of the Estate of the Late Patrick Odendo Oyundi] v Kenya Defence Forces & another [2021] KEELRC 1191 (KLR)", Case Analysis (2021). Petition (filed 14th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1191/eng@2021-07-23

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