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High CourtDismissedPetition dated 24th August, 2016

Hezron Ndarera Onchiri v Attorney General

High Court of Kenya
5 March 2020
WKW. Korir
1,436 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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When pursuing a constitutional claim in Kenya, you must provide a clear explanation for any delay and back your allegations with solid evidence.

What this practically means

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Executive summary

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Hezron Ndarera Onchiri, a former Kenya Airforce security officer, petitioned the High Court seeking compensation for alleged torture and unlawful imprisonment arising from the failed coup of 1st August, 1982, naming the Attorney General as Respondent. He testified that he was arrested at Nanyuki Airbase, detained and tortured at Kamiti, Naivasha Maximum Prison and Industrial Area, tried by court martial over a year later, convicted and sentenced to twelve months imprisonment. The Respondent, through Major Daniel Muu Kiama, stated that the court martial records had been destroyed and witnesses had died or left service, that the Petitioner was discharged because his services were no longer required, and that the petition, filed 34 years after the events, was an abuse of process tainted with inordinate delay that violated the Respondent's right to a fair hearing under Article 50. The court found the Petitioner had offered no explanation for the delay in his pleadings, and that explanations offered only in submissions were of no value since submissions are not pleadings. Even those explanations were unconvincing given the expanded democratic space after 2003 and the 2010 Constitution. The court agreed with the Respondent that the unexplained inordinate delay denied it a plausible defence, and further found no documentary or witness evidence supporting the claims of service, torture and dismissal. The petition was dismissed with no order as to costs on 5th March, 2020.

Key legal issues

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01

Whether inordinate, unexplained delay justified dismissal of the constitutional petition

Holding

The petition was dismissed because the Petitioner offered no explanation in his pleadings for filing 34 years after the events, and the delay denied the Respondent a plausible defence contrary to the right to a fair hearing under Article 50.

Reasoning

The court noted the Petitioner gave no reason in the petition or supporting affidavit, and explanations offered only in submissions carry no weight. Even the explanations in submissions were unconvincing: the Petitioner did not file after the Moi government left in 2003 or within five years of the 2010 Constitution, nor did he explain the outcome of earlier suits against the Respondent.

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02

Whether the Petitioner proved the alleged torture, unlawful imprisonment and service in the Kenya Airforce

Holding

The claim failed on the evidence: no documents were produced and no witness was called to support the allegations of service, torture and dismissal.

Reasoning

The Petitioner relied solely on his own viva voce evidence. The court, applying its own reasoning in Gilbert Guantai Mukindia, held that oral evidence from even one supporting witness was available and critically important, yet the Petitioner chose not to call any, leaving no evidence on record to support the claim.

p. 2

Legal principles established

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  • An unexplained delay in filing a constitutional petition can be a ground for dismissal of the petition.
  • Submissions are not pleadings and cannot supply explanations absent from the pleadings.

Court orders

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  1. 1.The petition is dismissed with no order as to costs
Jurisdiction invoked
Constitution of Kenya, 2010 (constitutional petition for violation of rights; Articles 50 and 51 invoked in submissions)

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, "Hezron Ndarera Onchiri v Attorney General", Case Analysis (2020). Petition dated 24th August, 2016. Source:

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