Kinyanjui & 3 others v Attorney General

The Petitioner John Ndungu Kinyanjui (Kinyanjui) being aggrieved, lodged Civil Appeal No 103 of 2018. On the same day, the learned Judge also dismissed Constitutional Petition No 223 of 2013 that had been led by Peter Njuguna Mwangi alias Materero (Mwangi), Joseph Njoroge Mburu (Mburu), and Henry Mburu Turi (Turi). The Petitioners in Petition No 223 of 2013 were also aggrieved and lodged Civil Appeal No 104 of 2018. The two appeals, which were consolidated, are the subject of this judgment. 2. From the respective adavits of the petitioners sworn in support of the two petitions, the petitions arose from the same circumstances. The Petitioners (hereafter referred to as the appellants) were part of a group of persons who, on 3rd March 1992, were at Freedom Corner within Uhuru Park in a peaceful fast/hunger strike, agitating for the release of Hon. Koigi Wa Wamwere and 53 other political prisoners. Ocers of the Kenya Police and the General Service Unit responded to the strike by brutally attacking the appellants and other persons with boots, batons, rubber whips, kicks, blows, and tear gas. The participants in the fast/hunger strike, including the appellants, were arrested by the ocers, bundled into police vehicles and taken to their rural homes. 3. Undeterred, the appellants went back to Freedom Corner after a few days and continued with their peaceful campaign and hunger strike. They moved to the All Saints Cathedral Church grounds where they were hosted by the Church as they continued with the campaign from 4th March, 1992 to 19th January, 1993, by which time all the political prisoners had been released. As the appellants camped at the Church between March, 1992 and January, 1993, the police continued to attack and torture them for supporting the campaign for the release of the political prisoners. These persistent attacks caused them trauma, physical and psychological pain as a result of which they led the two constitutional petitions in the High Court for declarations regarding violations of their constitutional rights as well as recovery of damages, including exemplary and general damages. 4. During the hearing of the petitions, each of the appellants relied on adavits, which they swore in support of the petitions. They also gave oral evidence reiterating that they were attacked by police ocers and GSU ocers while in a peaceful fast/hunger strike; that they were beaten, bundled into police vehicles, and taken to their rural homes; that they went back to the Freedom Corner where they continued with their peaceful campaign; and that the police ocers and GSU ocers continued harassing them, beating them and threatening to kill them, even as they sought refuge within the compound of the All Saints Cathedral. 5. The appellants did not produce any medical records in support of the alleged brutal attacks or the injuries that they allegedly suered. The only evidence they produced was a magazine in which the plight of the mothers of the political detainees was highlighted. 6. The Attorney General did not call any evidence, but opposed the petitions through grounds of opposition and submissions in which it was contended that the petitions had been brought after an inordinate delay, and that no reasons were given to explain the inordinate delay; that there was no evidence that any acts of constitutional violations were committed, or that the Government was involved in such violations; and that the petitions were imprecise, fatally defective, and an abuse of the Court process. 7. Upon considering the evidence, the grounds of opposition and the submissions made by the parties, the learned Judge delivered judgment in Petition No. 199 of 2013 in which he found that the facts giving rise to the claim in the petition occurred more than 20 years, before the petition was led; and that, although there was no limitation of time for ling cases for enforcement of fundamental rights and freedoms, only claims that had been substantiated should be entertained. The learned Judge found that Kinyanjui had failed to adduce any tangible evidence to prove his allegations of torture, and hence https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 2

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had failed to substantiate his claims that his rights under Section 74 of the retired Constitution relating to the claim that the right to protection against torture and inhuman treatment were violated. 8. In regard to Petition No. 223 of 2013, the learned Judge was concerned about the casual manner in which the case was conducted. The judge noted that the appellants (Mwangi, Mburu and Turi) did not adduce any evidence in support of their allegation that they were subjected to physical or mental torture or suered any injuries. Nor did they adduce any tangible evidence or produce any medical records or medical reports of such injuries. The learned Judge rejected an extract of a Magazine, ‘The Society’, dated 23rd March 1992 relied upon by the appellants, stating that although it had some articles reporting chilling accounts of the brutality meted out to women who were seeking release of their sons at Freedom Corner, the article did not have any connection with the appellants, who were all men. In addition, the magazine had no probative value because it is not a document covered by section 35 of the Evidence Act. 9. The following excerpt of the judgment in Petition No 223 of 2013 shows the reasoning of the learned Judge: “ 27. It is also not enough that the Petitioners were at the Freedom Corner on the material day agitating for a genuine cause and that they were later that day rounded up and taken to their rural homes. It is also not enough that they returned to Nairobi and camped at the All Saint Cathedral for a year where there was constant harassment by the police. What they have alleged in the present Petition is torture, and even if the torture was not only physical but mental, the expectation of the law is the same, which is that for torture to be proved the following elements must be in place. (i) Severity of pain and suering. (ii) The intention of the torturer must be to cause severe pain and suering at the least and that he is indierent to the possibility of causing intense pain and suering. (iii) The person or authority inicting, instigating, or acquiescing in the act causing pain and suering must be a public ocial or other person acting in an ocial capacity (See Koigi Wamwere v AG [2015] eKLR). 28. Further, both under section 74 of the Repealed Constitution as well as Article 29(d) of the Constitution, as read with Article 25(a) thereof, there cannot be a defence to torture hence the well understood legal requirement that the threshold of severity of actions constituting torture is extremely high. 29. While therefore torture has been described as one of the most reprehensible of actions (See Cox v Canada, 539/93), it cannot be pleaded as casually as the Petitioners have done in the present Petition… …….. 31. …I reiterate that what happened to the Petitioners at the Freedom Corner, if at all, and subsequently at All Saints Cathedral, cannot by any denition known to law, and even if the threshold could be considerably lowered, amount to torture. The Petitioners’ claim in that regard must fail. Similarly, that feeble claim that they were subjected to cruel, inhuman and degrading treatment https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 3

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cannot stand because nothing was said of that claim save in the body of the Petition. The entire case in fact rested on the claim of torture.” 10. In their respective appeals before this Court, the appellants led memoranda of appeals in which they faulted the judgment in Petition No 199 of 2013 and Petition No 223 of 2013 on 17 identical grounds, which were compressed into four issues in the written submissions. These were: whether the adavit and oral evidence of the brutal attack on the unarmed appellants, by government police ocers and GSU ocers at freedom corner on 3rd March, 1992 and All Saints Cathedral between 5th March 1992 to 19th January 1993 established torture; whether the learned judge ought to have been guided by precedents in similar cases in which it was held that there was torture and violation of human rights of 8 mothers at Freedom Corner; whether there were constitutional or statutory time limitations, on petitions founded on human rights violation; and whether the appellants were entitled to the prayers sought in their petition. 11. In similar written submissions, the appellants submitted that they gave oral evidence during the hearing of the petitions, and also adopted their respective adavits which they had sworn in support of the petitions. They argued that their evidence was not challenged as they were never cross examined on the contents of their adavits, the state counsel having only asked brief general questions. They added that their adavit evidence was not rebutted by the respondents through any replying adavit or oral evidence. 12. As regards the Magazine that was rejected by the learned Judge, the appellants explained that, although the magazine had comprehensive coverage of the ordeal suered by those involved in the fast/hunger strike, it was only secondary evidence additional to the eyewitness and personal accounts given by the appellants. On the delay in ling their petitions, the appellants explained that, before torture cases were decided by the new Judiciary post 2010 Constitution, they had no faith, trust or condence in getting justice from the old Judiciary; and that neither the former Constitution nor the current Constitution limits the time for ling constitutional petitions and human rights cases founded on violation of fundamental rights and freedom. They cited Peter M Kariuki v Attorney General [2014] eKLR in which a petition led 23 years after the alleged constitutional violations was admitted notwithstanding the delay. 13. The appellants submitted that the history of human rights struggles in Kenya between 28th February 1992 and 3rd March 1993 by mothers of political prisoners was a historical fact. They faulted the learned Judge for ignoring this fact, and for departing from his earlier decisions involving Freedom Corner cases of torture and violation of human rights emanating from the fast/hunger strike at the freedom corner. 14. In particular, the appellants cited Milkah Wanjiku Kinuthia & 2 others v Attorney General Petition No.281 of 2011, 282 of 2011, 337 of 2011 and 338 of 2011, which petitions arose from the same circumstances as that of the appellants, and in which the same Judge, relying on the basis of the unchallenged petitions and oral evidence without production of treatment cards or medical reports, ruled that the treatment meted out on the petitioners by agents of the government, were inhuman and degrading. 15. In addition, the appellants faulted the learned Judge for contradicting himself in his judgment in nding that the appellants were at the freedom corner and at All Saints Cathedral on the days they said they were, and yet ruling that they were not tortured, while the appellants were with Milka Wanjiku Kinuthia and Margaret Wangui Kinuthia in respect of whom he had ruled under the same circumstances that they were tortured. They urged the Court to allow their respective appeals and award each appellant Ksh. 5 million for violation of their rights. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 4

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16. In response to the appellant’s submissions, the Attorney-General led written submissions reiterating the submissions led in the High Court. The Attorney-General also led grounds of armation, which were that: the appellants failed to prove the alleged violations by failing to adduce cogent evidence in support of the allegation of actual torture; the appellant failed to produce treatment or medical records to prove their contention that they were injured and attended in medical facilities; that the nding by the High Court that the Society Magazine was not admissible under Section 35 of the Evidence Act, and therefore of no probative value, was proper; and that granting the appeal would amount to the appellants beneting from an illegal and unsanctioned gathering in violation of the Public Order Act (Cap. 56 Laws of Kenya). 17. The Attorney-General identied 5 issues arising from the appellants’ appeal. These were: (i) Whether the learned Judge erred in nding that torture had not been proved by the appellants. (ii) Whether the learned Judge erred in nding that unexplained inordinate delays can extinguish one’s unclaimed constitutional rights. (iii) Whether statements in an uncontested adavit should be considered as admissions, and therefore warrant the rendering of a decision in total consonance with the averments therein. (iv) Whether the germane parts of the “Society Magazine” relied upon by the appellants in the High Court should have been relied on as proof of torture. (v) Whether the learned Judge erred in allowing his personal opinion to inuence the judgment. 18. The Attorney-General submitted that Mwangi’s adavit was challenged through cross-examination and that, much as he alleged he was brutally arrested and injured, he claimed he did not seek medical attention due to his religious faith and that, therefore, he did not have any medical evidence. On his part, Mburu claimed during cross- examination that he was attacked and injured, and that he had Xray images proving the same. However, he did not produce the X-ray images or treatment notes, nor did he disclose the name of the medical ocer who attended to him or the medical facility which he attended. Turi was also cross-examined and stated that he was brutalized by the police and treated at Tigoni General Hospital and Kijabe Hospital, but he also failed to produce treatment notes claiming his wife burnt the documents. 19. The Attorney-General submitted that the learned Judge correctly applied the law and found that the appellants failed to discharge the burden of proof as provided under Sections 107 and 109 of the Evidence Act. The Attorney-General cited the following authorities: Florence Amunga Omukanda & Another v Attorney General & 2 Others [2016] eKLR; and Kirugi & Another v Kabuya & 3 others [1987] KLR 347. 20. On the issue of the alleged uncontested adavit evidence, the Attorney-General submitted that the appellants’ petition proceeded in accordance with Rules 20, 21, and 22 of the Mutunga Rules, which require a constitutional petition to proceed by way of adavits, written submissions and oral evidence. Consequently, the Attorney-General responded to the petition through written submissions, which summarized its case and legal arguments; and that, therefore, the Attorney-General eectively challenged the truthfulness of the adavit statements made by the appellants. The Attorney-General asserted that adavit evidence was not necessary on his part, as his submissions were based on pure points of law. 21. On the issue of unexplained inordinate delay, the cases of Attorney General of Uganda & Another v Omar Awadh & 6 others EACJ No 2 of 2012; Maurice Okech Owiti v Hon. Attorney General [2016] eKLR; and Wellington Nzioka Kioko v Attorney General [2016] eKLR were all relied upon, the https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 5

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Attorney-General arguing that the delay in ling the petitions had to be credibly explained, and that the Court had to be on the look-out, to forestall a possible abuse of its process by cyclic litigants. 22. The Attorney-General also relied on Dominic Arony Amolo v Attorney General, Misc Application No. 494 of 2003 for the proposition that constitutional rights cannot be subjected to time limitations contemplated in the Limitation of Actions Act, but that laches may apply depending on the circumstances of each case. The Attorney-General maintained that the reasons given by the appellants for approaching the court many years after the alleged torture occurred was not plausible, nor did the appellants give a satisfactory explanation as to why the court should accommodate the delay. In addition, the appellant’s cases failed the merit and substantiation tests. 23. In regard to the reliance on the ‘Society Magazine’ as evidence in proof of the appellants’ torture, the Attorney General referred to the lucidious submissions made before the High Court on the evidentiary value of newspaper articles. The Attorney-General cited Randu Nzau Ruwa v The Attorney General [2014] eKLR; Margaret Wanjiru Ndirangu & 4 others v Attorney General [2015] eKLR; and Macharia Wa Kamau & 2 Others v Attorney General [2015] eKLR, asserting that newspaper articles and magazine are not covered under Section 35 of the Evidence Act and that, even if they were to be admitted as evidence under that section, they lacked probative value, because they did not bring out the connection between the individual appellants and the reported story. 24. As to whether the appellants should be allowed to benet from their unsanctioned actions, the Attorney General submitted that the public gathering held by the appellants at the Freedom Corner was an illegal meeting as it violated the provisions of the Public Order Act and that, therefore, the appellants could not seek protection of the law for an illegal activity. 25. The Attorney General concluded that the appeals should be dismissed as the appellants did not prove any violation of their constitutional rights; that the appellants were involved in illegal meetings; and that their petitions were brought after inordinate delay without any plausible explanation therefor. 26. The appellants led further submissions dated 1st February, 2023, which were entitled “Appellants Addendum Submissions”. The addendum submissions were anchored on a decision of the Supreme Court in Monicah Wangu Wamwere & 5 Others v Attorney General in Supreme Court Petition No. 26 of 2019 consolidated with Petitions Nos. 34 and 35 of 2019 [2023] KESC 3 (KLR). (herein Monicah Wamwere Supreme Court decision), in which judgment was delivered on 27th January, 2023. 27. The Monica Wamwere Supreme Court decision originated from constitutional petitions led in the High Court that were similar to the petitions led by the appellants as they arose from the Freedom Corner violations. The constitutional petitions were dismissed by the High Court (Lenaola, J) (as he then was) for similar reasons as those given in the appellants’ case. The appeals by Monicah Wamwere and her co-petitioners from the judgment of the High Court to the Court of Appeal, were likewise dismissed. Monicah Wamwere and her co- petitioners appealed to the Supreme Court under Article 163(4) (a) of the Constitution and Section 15(2) of the Supreme Court Act. 28. Upon hearing the appeals, the Supreme Court set aside the judgments of the Court of Appeal and the High Court and declared that the petitions by Monicah Wamwere and her co-petitioners were lodged in the High Court without inordinate delay due to the historical context under which the violation claim occurred. The Supreme Court also found that the rights and freedom of Monicah Wamwere and her co- petitioners against inhuman treatment as protected under Section 74(1) of the repealed Constitution were violated, and awarded each of the petitioners Kshs 2.5million as damages for the violations. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 6

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29. The appellants urged this Court to rely on the Monicah Wamwere Supreme Court decision, particularly the nding of the Supreme Court that the Freedom Corner cases were in the nature of transitional justice claims, and that the petitioners claim qualies as falling within the category of the transitional justice claims. The appellants argued that transitional justice claims are context sensitive; and that public interest in the claims and what is fair are relevant considerations. In addition, that there is no clear date when a transition can be said to have run its full course taking into account the tendency for re- irruptions in the form of renewed quest for justice. 30. The appellants drew the Court’s attention to the following dictum by the Supreme Court: “ In our view there is also public interest element in allowing victims of alleged past gross human rights violations to access courts; that is, serving justice is the most eective insurance against future repression." 31. The appellants urged the Court to take judicial notice of the nding by the Supreme Court that the Freedom Corner incidents took place and drew wide spread coverage nationally and internationally, as well as condemnation across the globe. 32. The appellants quoted the Supreme Court on torture, as follows: “ It is evident that the exact boundaries between ‘torture’ and other forms of ‘inhuman or degrading punishment or other treatments’ are often dicult to identify; and may depend on the particular circumstances of the case as well as the characteristics of the particular victim. Nonetheless, both terms cover mental and physical ill treatment that has been intentionally inicted by or with a consent or acquiescence of state authorities” 33. The appellants also found the following nding by the Supreme Court instructive: “ However, taking into account the violent nature of the disruption of the subject protest/ assembly, it is more likely than not that the whole episode had a psychological traumatic eect on the appellants, who we have held were at the locus in quo. Although the appellants did not exhibit any physical injuries or medical reports, we are persuaded that the whole incident had a psychological or traumatic eect in them. This in our view, can be equated to inhuman treatment which was a violation of section 74(1) of the repealed constitution. This is because the respondent did not give any justiable reason(s) whatsoever why it was necessary to violently disrupt and disband the protest by the appellants who were armless. To that extent, and unlike the two superior courts below, we nd that the appellants rights to freedom of association and assembly was interfered with due to the violent methods employed by the police. This amounted to a violation of their human rights which were duly protected under section 74(1) of the repealed Constitution.” 34. The appellants argued that their cases had a common thread with the petitions in the Monicah Wamwere Supreme Court decision and that, therefore, they should not be discriminated against. 35. The Attorney-General did not le any further submissions in response to the appellants’ addendum submissions. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 7

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36. We have carefully considered this appeal, the contending submissions and the law. The appeal before us being a rst appeal, we are alive to our duty as stated in Peters v Sunday Post Ltd [1958] EA 424 that: “ Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide” 37. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, this Court restated the duty as follows: “ [A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect” 38. In accordance with the above authorities, we start our consideration of this appeal by reanalyzing and evaluating the evidence before the learned Judge in order to arrive at our own conclusion, bearing in mind the law, and being mindful of the fact that the trial Judge had the advantage of seeing and assessing the demeanor of the witnesses. 39. The issues that we discern for our determination in this appeal are: rst, whether the learned Judge improperly dismissed the petitions due to limitation; second, whether the appellants’ adavits led in support of their petitions were uncontested and, if so, whether the same was sucient to prove their claims; third, whether the Society Magazine was admissible in evidence and, if so, whether it was sucient to prove the appellants claims for torture and inhuman treatment; fourth, whether the Monica Wamwere Supreme Court decision is a binding authority in support of the appellants claim; and nally, whether the appellants appeals should be allowed. 40. At paragraph 18 to 20 of the judgment in Petition No 199 of 2013, this is how the learned Judge rendered himself on the issue of limitation: “ 18. Neither the Repealed Constitution or Constitution 2010 makes provision for time in terms of ling a claim for enforcement of fundamental rights and in the case of Dominic Arony Amolo v Attorney General Misc Applic No.494 of 2003 it was held that the Limitations of Actions Act (Cap 22 Laws of Kenya), was inapplicable in regard to claims for enforcement of the Bill of Rights. That nding has been upheld by our Courts over the last ten years, and I have no reason to depart from the said holding. 19. To my mind however, despite the fact that the law does not impose limitations for ling of proceedings to enforce fundamental rights and freedoms, there must be a justication as to why a claim had not been led as early as the alleged breach occurs. I say so because obviously, the State would be prejudiced heavily by the inordinate delay as the ocers who may have been responsible may not be found and it would also not have the means to defend itself. There is also the likelihood of a Petitioner being prejudiced given the passage of time and memory loss leading to inconsistencies. Records may also be lost and crucial https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 8

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witnesses may not be traceable or have since passed on. It is therefore important to le a Petition as soon as the breach occurs only to mitigate against such factors. 20. In that context, the facts relied upon and giving rise to the claim in the Petition occurred between 3rd March 1992 and 19th January 1993, which is over twenty years ago. While it is true therefore that there is no limitation of time for ling cases for enforcement of fundamental rights and freedoms, it is also true that the Judiciary has over the last few years provided redress for human rights atrocities that occurred in previous regimes notwithstanding obvious delays in ling such claims. The political situation has also drastically changed and the law has similarly changed with a new Constitution that has brought a new dawn that has given the people of Kenya hope, especially those who have suered historical injustices. I am of the view in that regard that our Courts ought to examine each of the claims made for violation of fundamental rights and freedoms and only those that have been substantiated should be addressed notwithstanding the obvious delay in ling them and I shall now proceed to determine the present Petition on the basis of the evidence presented by the Petitioner.” (emphasis added) 41. The foregoing extract of the judgment shows that the learned Judge accepted that limitation of actions is not applicable to claims for enforcement of fundamental rights and freedoms, but stressed that such claims should be addressed, provided that they could be substantiated. In petition No 223 of 2013, the learned Judge did not specically address the issue of limitation, but appears in line with the position taken in petition No 199 of 2013 to have focused on the substance of the petitioners’ claims. 42. Ground 4 in the memorandum of appeal, in Civil Appeal No 103 of 2018 and Civil Appeal No 104 of 2018, faulting the learned Judge for nding that the appellants had no right to institute their petitions for violation of fundamental right from torture, inhuman and degrading treatment after 20-22 years has no basis, as the learned Judge did not make any such nding, even though the Attorney-General had urged the learned Judge to dismiss the petitions on that ground. Since the Attorney-General has not cross appealed against the nding of the High Court in regard to limitation, it is not a matter open for our consideration in this appeal, and this ground therefore fails. 43. There is another reason why this ground fails. The Supreme Court has rendered itself, precisely and concisely, on the issue, and endorsed the view taken by the High Court and this Court. We only need to cite one example to demonstrate this. 44. In Wamwere & 4 others v Republic, the Supreme Court addressing the issue of limitation in a claim for violation of rights and freedoms under the Constitution, stated: “ (37) Perhaps, the starting point under this issue should be a consideration of whether the two superior courts below in their impugned decisions, imposed limitation of time as alleged by the appellants. Having perused the decisions in question, we are satised that the two courts did not impose the limitation alluded to. In point of fact, the two superior courts armed the position that the Limitation of Actions Act, Cap 22 Laws of Kenya does not apply to causes founded on violation of rights and freedoms. We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case by case basis. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 9

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(38) Nonetheless, it is well settled that a court is entitled to consider whether there has been inordinate delay in lodging a claim of violation of rights. See the persuasive decision of the Court of Appeal in Safepak Limited v. Henry Wambega & 11 Others, Civil Appeal No. 8 of 2019; [2019] eKLR. It is on that basis that the two superior courts held that claims of violation of human rights must be led in court within reasonable time. Where there is delay, a petitioner ought to explain the reasons for the delay to the satisfaction of the court. 45. The substantive issue before the High Court was whether the appellants established that police ocers and GSU ocers violated their rights to protection against torture and degrading treatment by subjecting them to physical and psychological torture. In answering this issue, three ancillary questions arise, that is, whether the appellants participated in the Freedom Corner incidents/All Saints Cathedral Fast cum Hunger Strike; if so, whether while participating in the fast/hunger strike, they were treated in a way that amounted to torture and degrading treatment; and whether failure by the appellants to produce medical evidence in support of their injuries was fatal to their claims. 46. The record of appeal in Petition No 199 of 2013 shows that the High Court gave directions on 24th April, 2014 for the hearing of the petition to proceed by way of oral evidence. The same directions were given again by the High Court on 25th July, 2014. The hearing did not however proceed as scheduled. On 23rd March, 2015 the High Court recorded a consent agreed upon by the parties that the adavit of Kinyanjui would be taken as his evidence without cross examination. There was no witness called by the Attorney-General, but parties duly exchanged and led written submissions upon which the learned Judge was to deliver his judgment. 47. In petition No 223 of 2013, directions were given on 27th March, 2014 for hearing to proceed by way of oral evidence. However, the hearing did not take o as scheduled. On 9th October, 2014 a consent was recorded by the parties for the respondent to le a response within 7 days and for oral evidence to be taken on 5th December, 2014. The hearing did not take o as scheduled until two years later on 15th February, 2016 when Mwangi, Mburu and Turi testied, and were cross examined by the respondent and the Court. In their evidence, each of these petitioners basically relied on their adavits sworn in support of their petition, and did not oer any further evidence. They were cross examined by Mr. Moimbo who questioned their adavit evidence, particularly on the events at the Freedom Corner; the alleged torture and inhuman treatment; and the absence of medical records. 48. Thus, in regard to the issue of the alleged uncontested adavit evidence, the case of Kinyanjui is dierence from that of the other appellants as the Attorney-General accepted his adavit evidence and opted not to subject him to any cross examination. The record indicates that, after Kinyanjui closed his case, Mr. Moimbo who was appearing for the Attorney-General, also closed his case without calling any witness. The question is, did this mean that Kinyanjui’s adavit evidence was uncontested? 49. In answer to the foregoing question, we reproduce herein verbatim the grounds of opposition which were led by the Attorney-General in response to Kinyanjui’s petition. “ (i) That the Petition has been brought after an inordinate delay. Over thirty years after the alleged violation was committed. (ii) That no reasons whatsoever have been advanced to explain the long and inordinate delay. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 10

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(iii) That the petitioner has not shown by way of evidence that the alleged acts of violation were committed and further that if they were indeed committed that the government was involved. (v) That the petition led herein is imprecise, it is based on generalities, and therefore fatally defective. ii. That the petition, as led herein, is an abuse of the court process” 50. As evident from above, apart from ground (iii) which addressed issues of fact and law, the rest of the grounds deal with issues of law only, and the Attorney-General having neither cross examined Kinyanjui nor called any witness to challenge his evidence, the facts deposed to by Kinyanjui in his supporting adavit were not questioned. However, in light of ground (iii) in the grounds of opposition led by the Attorney General, which clearly challenged the evidence in support of Kinyanjui’s petition, the position was that Kinyanjui’s adavit evidence was in question. 51. In accordance with section 107 of the Evidence Act, which requires any person who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts exist, Kinyanjui had to prove that the facts which he asserted in his petition and supporting adavit existed. 52. The learned Judge addressed the question as to whether the adavit evidence availed by Kinyanjui was sucient to prove his claims of constitutional violations. The learned Judge noted that the only piece of evidence that Kinyanjui presented in support of his allegations of torture was Society Magazine, issue No. 4, which was not sucient to prove torture as known in law. We agree with the learned Judge that a claim by anyone that he has been tortured or treated in a dehumanizing manner by those responsible for protecting life and property is a grave and serious indictment that cannot be treated lightly. Therefore, it was incumbent upon the party making such allegations to establish the claims of torture or inhuman or degrading treatment in accordance with Sections 106 and 107 of the Evidence Act. 53. The following dicta by the Supreme Court in the Monicah Wamwere decision with regard to inhuman or degrading punishment or treatment is instructive: (86) We nd that “inhuman or degrading punishment or treatment” refers to ill- treatment which does not have to be inicted for a specic purpose. However, an intention to expose individuals to conditions which amount to or result in the ill- treatment has to exist. Exposing a person to conditions reasonably believed to constitute ill-treatment will entail responsibility for its iniction. Further, degrading treatment may involve less severe pain or suering than torture; and will usually involve humiliation and debasement of the victim. The essential elements which constitute ill-treatment not amounting to torture would therefore be reduced to the intentional exposure to signicant mental or physical pain or suering. 54. As regards the position of Mwangi, Mburu and Turi, they all gave oral evidence and relied on their respective adavits sworn in support of their petition. They were also subjected to cross examination. They fully relied on their adavits and the facts deposed to therein. These appellants were keenly crossexamined on these adavits by Mr.Moimbo, who appeared for the Attorney-General. They were also questioned by the trial Judge. 55. Although each of these appellants claimed that they were tortured and had to seek medical treatment, none of them was able to produce any evidence in regard to the medical treatment, or evidence of any psychological torture. Under cross-examination, Mwangi claimed that he was beaten on many https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 11

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occasions and injured on his legs, but did not go to hospital because of his faith. Mwangi did not call any evidence in support of his alleged faith, nor did he give any details of his faith. 56. Mburu also claimed that he was beaten and hit on the head with a gun, that he suered a head injury, and is unable to bear any weights on his shoulders. He claimed to be having X-rays of his injuries, but did not produce the X-rays in evidence, nor was he able to name the doctor who treated him or the hospital that he went to, or give any plausible explanation for these omissions. 57. On his part, Turi claimed that he suered injuries on his head, had a broken nger and a broken clavicle, and that he was treated at Kijabe hospital, but that his wife burnt all his personal documents. There was no independent evidence produced to conrm these allegations. Thus, other than the words of these appellants, there was nothing in support of their allegations that they were subjected to torture. 58. Mwangi claimed that their plight was reported in the Society Magazine and sought to use that Magazine as evidence in support of his petition. However, the learned Judge rejected the evidence of the Society Magazine, as it failed to meet the requirements of Section 35 of the Evidence Act. We agree with the ndings of the learned Judge, that the Society Magazine was not admissible under section 35 of the Evidence Act as neither the editors of the Magazine nor the reporter of the article were called to testify. Nor was any reason given as to why these people were not called as witnesses. 59. We accept that, as Kenyans, we are privy to the events that took place at the Freedom Corner/All Saints Cathedral at the material time, and can take judicial notice of the general occurrence of these events. Nevertheless, the specic identity of the appellants as persons who participated and who were aected by these events are not matters of judicial notice. They are matters that had to be legally established. A clear nexus had to be established between the appellants and the reports in the Society Magazine, but there was none. 60. At paragraph 75 of the Monicah Wamwere Supreme Court decision, the Supreme Court noting that judicial notice of the Freedom Corner/All Saints Cathedral incidents, has been accepted by various courts asserted the need for proof of the appellants’ claims: “ [75] Based on the foregoing historical accounts, there is no doubt that the Freedom Corner incident took place. A fact which in no way was disputed by the two superior courts. Nonetheless, the burden of proof still lay with the appellants to prove on a balance of probabilities that they were not only at Freedom Corner but were also subjected to torture, inhuman and degrading treatment during the demonstration." 61. The appellants having made specic averments regarding their constitutional violations, which averments were questioned by the Attorney-General, they could only discharge their burden of proof by adducing cogent evidence in support of their claim. Indeed, such an experience would be a traumatic experience not easily forgotten. Evidence by an independent witness who was with them during the ordeal would have gone a long way in proving their case. Similarly, evidence regarding their injuries would have helped in corroborating their evidence. 62. We appreciate that, in the Monicah Wamwere decision, the Supreme Court made a conscious decision to accept the appellants’ claim notwithstanding the evidential gap. This is because the Supreme Court was satised that those appellants were actually present during the protest and that, given the violent disruptive nature of the protest, their rights to freedom of association and assembly was interfered with, and that this amounted to violation of their constitutional rights under Section 74(1) of the repealed constitution. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 12

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63. In our view, the Monicah Wamwere decision was decided on its own peculiar circumstances. It is not lost on us that Monica Wamwere is the mother of Koigi Wamwere, who was one of the political detainees whose release the protesters were agitating for. Her participation in the Freedom Corner incidents was common knowledge. The Monicah Wamwere decision is therefore distinguishable from the circumstances of Kinyanjui, Mwangi, Mburu and Turi, as these appellants failed to prove that they participated in the protest/hunger strike, or that they were subjected to torture and degrading treatment. The trial Judge who observed Mwangi, Mburu and Turi testied and cross examined, and also perused the adavits sworn by the appellants in support of the petitions was not persuaded by the oral and adavit evidence. We nd no reason to depart from the nding of the learned Judge. A litigant who initiates a claim in court cannot take anything for granted. He/she must be armed with all his/her arsenals so as to meet their obligation of discharging the burden of proof required of them. 64. For the above reasons, we come to the conclusion that these appeals must fail. Accordingly, we hereby dismiss the appeals and order each party to pay their own costs. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. HANNAH OKWENGU ........................................ JUDGE OF APPEAL J MATIVO ........................................ JUDGE OF APPEAL G. NGENYE JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1946/eng@2024-12-20 13

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