Musango Maithya & 1 other v The Cabinet Secretary, Ministry of Interior and Coordination of National Government & 4 others

IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF SECTION 2 (3) OF THE GOVERNMENT PROCEEDINGS ACT AND IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 AND IN THE MATTER OF ORDER 1 RULE 3, ORDER 8 RULE 3 (2) & (5) AND ORDER 51 OF THE CIVIL PROCEDURE RULES BETWEEN MUSANGO MAITHYA .................................................................... 1ST PETITIONER IRENE KINYA ................................................................................. 2ND PETITIONER A PARTNERSHIP, T/A SWEETBERRIES WINES AND SPIRITS AND THE CABINET SECRETARY, MINISTRY OF INTERIOR AND COORDINATION OF NATIONAL GOVERNMENT .................... 1ST RESPONDENT THE NATIONAL POLICE SERVICE ......................................... 2ND RESPONDENT THE PRINCIPAL SECRETARY, PROVINCIAL ADMINISTRATION & INTERNAL SECURITY ............................................................... 3RD RESPONDENT ASSISTANT COUNTY COMMISSIONERS OF KANGEMI AND LOWER KABETE .......................................................................................... 4TH RESPONDENT THE HON. ATTORNEY GENERAL .......................................... 5TH RESPONDENT JUDGMENT Introduction 1. This judgment pertains to an Amended Constitutional Petition dated 11th July 2018, as amended on 26th November 2021, filed by the Petitioners. The Petition arises from events that transpired on 4th July 2015, following a nationwide presidential directive for a crackdown on illicit and second-generation alcoholic drinks. The Petitioners, who were in the business of wholesale distribution of alcoholic beverages, allege that their business premises in Kangemi were attacked and destroyed by a mob led by the 4th Respondent, and that the 2nd Respondent failed to protect them. They contend that these actions and omissions violated their fundamental rights and freedoms under the Constitution and seek declaratory orders and substantial compensation. 2. The Respondents, through a Replying Affidavit sworn by PC Benjamin Wambua Kakemu on 17th December 2018 and Grounds of Opposition dated 1st May 2024, oppose the Petition. They deny any involvement in the destruction of the Petitioners' property and raise pivotal objections regarding the admissibility of the Petitioners' evidence and their failure to discharge the legal burden of proof. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 2

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3. The factual background giving rise to this litigation is largely uncontroverted in its broad outlines but hotly disputed in its material particulars. On 1st July 2015, the President of the Republic of Kenya issued a directive for a nationwide crackdown on the production and sale of illicit liquor. In response, the then Cabinet Secretary for Interior and Coordination of National Government drafted and enacted the Alcoholic Drinks Control (Supplementary) (Licensing) Regulations, 2015. 4. The Petitioners were at all material times a partnership trading as Sweetberries Wines and Spirits, operating a wholesale alcohol distribution business in Kangemi, Nairobi. They held a valid liquor license from the Nairobi City County and were distributors for several established beverage companies, including London Distillers (K) Ltd, and Africa Spirits Ltd. 5. On 4th July 2015, a group of individuals, allegedly led by the 4th Respondent attacked the Petitioners' business premises. The Petitioners allege that the mob, armed with metal bars and other weapons, broke into their premises, destroyed their stock of alcoholic beverages, stole cash, and caused damage to other assets. They further allege that officers from the Kabete Police Station were present at the scene but failed to intervene to protect their persons or property. 6. The Petitioners reported the incident at the Kabete Police Station and subsequently engaged Elite Tax and Management Consultant Limited, which prepared a report quantifying their alleged total loss at Kshs.56,770,000/=. This figure comprises destroyed stock, stolen cash, and damaged assets. The Petitioners’ Case 7. The Petitioners' case, as crystallized in their Amended Petition, is that the Respondents, through their actions and omissions, violated multiple constitutional provisions. They anchor their claim on the following alleged infringements: Article 29 on the right to freedom and security of the person, arguing that they were subjected to violence and their safety was compromised. Article 31 on the right to privacy, contending that their premises were unlawfully searched and possessions seized. Article 40 on the right to property, asserting that their business stock and assets were destroyed. Article 47 on the right to fair administrative action, claiming that the presidential directive and its implementation were procedurally unfair and that they were not accorded a hearing. Article 27 on the right to equality and freedom from discrimination, alleging that their business was selectively targeted. Article 244(c) on the failure of the National Police Service to protect their property. 8. The Petitioners pray for declarations that their rights were violated, compensation for material loss, general damages for the constitutional violations, and the costs of the suit. The Respondents’ Case 9. The Respondents’ deny any involvement in the destruction. The Replying Affidavit of PC Benjamin Wambua avers that the police responded to the Petitioners' distress call, but upon arrival, the property had already been destroyed by members of the public. It is deponed that the police, in fact, rescued the 2nd Petitioner and her son from the premises. The Respondents justify the broader government action as a necessary measure, within the statutory framework, to combat a public health crisis caused by illicit alcohol. 10. Further, it was averred that the Petitioners are relying on a CD Recording which only shows the aftermath of some destruction, and it is not clear whether the said destruction was done at Petitioners’ premises or another place. Additionally, it is averred that there is no presence of the Police in the CD recording to indicate that the police failed to protect the Petitioners’ property. 11. The 5th Respondent, in their Grounds of Opposition, raises the following fundamental objections: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 3

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a. The Amended Supporting Affidavit is defective and ought to be struck out as an affidavit, being evidence on oath, cannot be amended. b. The electronic evidence (a CD recording) is inadmissible for non-compliance with the mandatory provisions of Section 106B of the Evidence Act, as it is not accompanied by the requisite certificate. c. The claim for special damages has not been strictly proved as required by law. The expert report is unreliable as it is not founded on a verifiable substratum of facts since the Petitioner failed to produce any documentation to substantiate the alleged loss incurred of the sum of Kshs.56,770,00/-. d. The Petitioners have failed to discharge the burden of proof to establish a nexus between the Respondents and the alleged violations and losses. 12. Consequently, the Respondents pray for the dismissal of the Petition with costs. 13. The Petition was canvassed by way written submissions and both Parties complied by filing their respective submissions. Petitioners’ Submissions 14. The Petitioners, in their written submissions, framed their arguments around five key issues for determination. Their core contentions are summarized as follows: 15. First, on the infringement of constitutional rights, they submitted that the attack on their premises, led by the 4th Respondent and witnessed by the 2nd Respondent, constituted a gross violation of their rights to security, privacy, and property. They relied on the case of Anarita Karimi Njeru to assert that they had properly particularized the violations. They further invoked the decision in Keroche Breweries Limited & 6 Others vs Attorney General & 10 Others (2016) eKLR, where the presidential directive and subsequent regulations were declared unconstitutional, to argue that the entire enforcement action was illegal ab initio. 16. Second, they contended that they were not dealing in illicit brew. They emphasized that they held a valid liquor license and were authorized distributors for reputable companies whose products were approved by KEBS and NACADA. They argued that the burden of proof had shifted to the Respondents to demonstrate that their stock was illicit, which the Respondents failed to do, as they produced no certificate or report from an authorized officer as required by Section 57 of the Alcoholic Drinks Control Act. 17. Regarding the failure of the Police to protect them, the Petitioners submitted that the 2nd Respondent abdicated its constitutional and statutory mandate under Article 244 of the Constitution and the National Police Service Act. They argued that despite prior knowledge of a possible attack and subsequent distress calls, the police response was deliberately delayed and ineffective, thereby violating their right to equal protection of the law. 18. It was further submitted that the 4th Respondent being an administrative officer appointed under Section 15(1) and (2) of the National Government Co-ordination Act 2013, is not an authorized officer under Section 51 (2) of the Alcoholic Drinks Control Act, 2010 and that duty falls on the 2nd Respondent. It was therefore argued that the 4th Respondent had no duty to lead members of the public in raiding private properties and consequently their action was illegal, unlawful and in violation of Petitioners right to property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 4

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19. On compensation, the Petitioners prayed for both special and general damages. They cited the South African case of Minister of Health & Others vs. Treatment Action Campaign & Others (2002) 5 LRC 216 at page 249 and the case of Simpson & Another v Attorney General (1994) 3 LRC 202 to support the proposition that courts can fashion innovative remedies, including compensation, for constitutional violations. They submitted that the report from Elite Tax and Management Consultant Limited provided a credible basis for the award of special damages. 20. Finally, they argued that the balance of probability lay in their favour, as the Respondents' actions disregarded the rule of law and principles of public participation. Respondents’ Submissions 21. The Respondents’ written submissions were structured around their Grounds of Opposition and their Replying Affidavit. Their key arguments are distilled as follows: 22. On the admissibility of evidence, they submitted that the Amended Supporting Affidavit was a nullity. They relied heavily on the decision in Republic V Commissioner of Value Added Tax Ex-Parte Iron Art Limited [2012] eKLR and Stephen Boro Githua v Family Finance Building Society & 3 others [2015] eKLR to assert that affidavit evidence, being sworn, cannot be altered and must be supplemented by a further affidavit if corrections are needed. 23. Regarding the electronic evidence, the Respondents insisted on strict compliance with Section 106B of the Evidence Act. They cited the Court of Appeal decision in County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR and John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR, which underscored that the certificate requirement is mandatory to vouch for the authenticity and integrity of electronic records. The absence of such a certificate for the CD recording, they argued, rendered it inadmissible. 24. On the burden of proof, the Respondents submitted that the Petitioners failed to provide any credible evidence linking them to the alleged violations. They emphasized the principle in Leonard Otieno v Airtel Kenya Limited [2018] eKLR, that decisions on constitutional rights should not be made in a "factual vacuum." They pointed out the inconsistency between the original and amended affidavits and the lack of witness statements corroborating their allegations. 25. Concerning the expert report and special damages, the Respondents urged the Court to reject the report from Elite Tax and Management Consultant Limited. They invoked the principles in Stephen Kinini Wang’ondu v The Ark Limited [2016] eKLR, arguing that the report was based on unproven assumptions and lacked a verifiable factual substratum. They further cited the classic authority of Herbert Hahn v Amrik Singh [1985] eKLR and the recent case of Swallah C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR to assert that invoices alone do not constitute strict proof of special damages; actual receipts of payment or other verifiable records are required. 26. In conclusion, the Respondents submitted that the Petition was built on a foundation of inadmissible and unproven evidence and therefore disclosed no factual or legal basis for the grant of the orders sought. Issues For Determination 27. From the pleadings, affidavits, and submissions, the following issues fall for this Court's determination: i. Whether the Petitioners' Amended Supporting Affidavit and electronic evidence are admissible. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 5

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ii. Whether the Petitioners have discharged the burden of proof to establish that the Respondents violated their constitutional rights as alleged. iii. Whether the Petitioners are entitled to the reliefs sought, specifically the award of special and general damages. Analysis of the Issues Whether the Petitioners' Amended Supporting Afidavit and electronic evidence are admissible 28. Before delving into the substantive merits of the constitutional grievances, the Court must first address the Respondents' formidable challenges to the very evidence upon which the Petition is founded. A case built on inadmissible evidence is like a house built on sand; it cannot stand. 29. The first challenge is directed at the Amended Supporting Affidavit. The Respondents contend, and rightly so, that an affidavit constitutes evidence on oath. The legal principle is settled that you cannot amend evidence. In the authority of Ethics and Anti-Corruption Commission v Haria & another [2025] KEELC 385 [KLR], the court observed thus: “ I agree that in law you cannot amend an affidavit, for reason that an affidavit comprises of evidence. To amend an affidavit would mean that one swore a false affidavit in the first place. What one needs to do is only file a supplementary affidavit or an additional affidavit for purposes of clarification or elaboration of the first affidavit.” 30. Similarly, in the case of James Peter Maina Muriuki Vs Moses Maina Ngugi & another [2008] eKLR, the court held that: “ While the law does not allow an amendment of an affidavit to support an amended chamber summons, there should be an independent affidavit to support the amended chamber summons even if it is in similar terms as that which supports the original chamber application. And it is not advisable to only refer to original affidavit as supporting the amended chamber application”. 31. In Republic v Commissioner of Value Added Tax Ex-Parte Iron Art Limited (supra), the High Court eloquently stated: “ …….Affidavit evidence cannot be amended but a party who realizes a mistake in the way that such evidence had been presented can seek the court’s leave to file a further affidavit to explain the mistakes or anomalies in an affidavit if the same had been filed in court and is part of the court record.” 32. This position was fortified by the Court of Appeal in Stephen Boro Githua v Family Finance Building Society & 3 others (supra), which held that an affidavit is not a pleading but evidence, and unlike pleadings, it is not subject to amendment. 33. Similarly, In re Estate of NMM (Deceased) [2021] KEHC 8035 (KLR), the court underscored that: “ An affidavit cannot be amended to support an amended pleading. The best the applicant should have done was to file a supplementary affidavit. Unfortunately, there is no fall back to the original supporting affidavit. In view of this lapse, the amended Notice of Motion is exposed and therefore a nullity on the face of it. It is by all means a defective application https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 6

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which cannot stand the test of a valid application. A pleading or submissions pegged on a fatally defective affidavit cannot stand. See Supreme court decision in the case of Gideon Sitelu Koncellah v Julius Lekakeny Ole Sukuli & 2 others [2018] eKLR where the court held that; ‘A replying affidavit is the principal document wherein a respondent’s reply is set and the basis of any submission and /or list of authorities that should be subsequently filed. Absence of this foundational pleading, the replying affidavit, and even the written submissions purportedly filed by the 1st respondents on 17th August 2018 are of no effect.’ Having held that the amended notice of motion is fatally defective, I am inclined to have the same struck out. Having struck out the engine of the application, I have nothing remaining to consider.” 34. A perusal of the record reveals that the Petitioners initially filed a Supporting Affidavit with their Petition. They subsequently filed an "Amended Supporting Affidavit" which introduces significant alterations, most notably the new allegation that the 4th Respondent "led" the attack. This is a material departure from the original affidavit, which merely stated that "people broke into their premises." The act of amending this sworn evidence is procedurally improper and undermines the sanctity of the oath. The Amended Supporting Affidavit is therefore rendered defective and is hereby struck out. The Court will rely on the original Supporting Affidavit in its analysis. 35. The second other issue pertains to the CD recording, which the Petitioners allege shows the aftermath of the destruction. Section 106B of the Evidence Act, provides stringent conditions for the admissibility of electronic evidence. 36. The admissibility of electronic records is provided for under Section 106 B of the Evidence Act (Cap 80) Laws of Kenya in the following terms: “ 106B (1) Notwithstanding, anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as a computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.” 37. Under sub-section (4), where a party seeks to give evidence by virtue of section 106B he has, among other things, to tender a certificate dealing with any matters to which the conditions above relate. The certificate should further: “ a) identify the electronic record containing the statement and describing the manner in which it was produced; and b) give such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 7

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38. The certificate has to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate). In the case of Republic v Barisa Wayu Matuguda [2011] eKLR, the court observed that: “ . . . any information stored in a computer. . . which is then printed or copied. . . shall be treated just like documentary evidence and will be admissible as evidence without the production of the original. However section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in that provision are satisfied.” 39. The court went on that: “ This provision makes it abundantly clear that for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of section 106B (4). Such certificate must in terms of S.106B (4) (d) be signed by a person holding a responsible position with respect to the management of the device.... Without the required certificate this CD is inadmissible as evidence.” 40. In the present case, the Petitioners have merely annexed a CD without any certificate as contemplated by the law. They have not identified the source of the recording, the device used, the person who made it, or the circumstances under which it was produced. Its legitimacy and integrity are therefore wholly unvouched for. Consequently, this Court finds the CD recording is inadmissible for want of compliance with the Evidence Act. It is hereby expunged from the record. 41. The striking out of the Amended Affidavit and the expunging of the CD recording significantly depletes the evidential foundation of the Petitioners' case. The remaining evidence must now be subjected to the most rigorous scrutiny. Whether the Petitioners have discharged the burden of proof to establish that the Respondents violated their constitutional rights as alleged. 42. The central pillar of our legal system is encapsulated in the Latin maxim: ei incumbit probatio qui dicit, non qui negat—he who asserts must prove. This principle is codified in Sections 107 and 108 of the Evidence Act. The burden of proving that their constitutional rights were violated by the Respondents rests squarely and heavily on the Petitioners. 43. Section 107 Evidence Act provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) 44. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” The Petitioners' core allegation is that the 4th Respondent, a state officer, led the mob that destroyed their property. However, the only evidence proffered to substantiate this grave allegation is the depositions in the struck-out Amended Affidavit. The original Supporting Affidavit is conspicuously silent on this pivotal detail. It merely states that "persons known and unknown" broke into the premises. An allegation of such magnitude, implicating a state officer in mob violence, cannot be sustained on the basis of an affidavit that has been rendered inadmissible. It remains an unproven assertion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 8

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45. Regarding the role of the 2nd Respondent, the Petitioners allege a failure to protect. The Respondents, through their Replying Affidavit, have provided extracts of the Occurrence Book (OB) which indicate that a report was made and that police officers were dispatched to the scene. The Petitioners have provided no credible evidence to contradict this. There is no affidavit from an independent witness, no official report from the police detailing their negligence, and no admissible video evidence showing police inaction. The mere fact that a crime occurred does not, per se, establish a constitutional violation by the police for failure to prevent it. The Petitioners must demonstrate that the police acted in a manner that was so unreasonable, arbitrary, or malicious as to amount to a violation of their rights. This, they have not done. 46. The Petitioners heavily rely on the expert report from Elite Tax and Management Consultant Limited to quantify their loss at Kshs.56,770,000. The law on expert evidence is settled: an expert's opinion is only as good as the facts upon which it is based. In Stephen Kinini Wang’ondu v The Ark Limited (supra), the High Court provided a masterful exposition on this subject, holding that: “ It is a trite principle of evidence that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub- stratum of facts which are proved, exclusive of the evidence of the expert, to the satisfaction of the court according to the appropriate standard of proof. The importance of proving the facts underlying an opinion is that the absence of such evidence deprives the court “of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence”. An expert report is therefore only as good as the assumptions on which it is based. " 47. The Court of Appeal, in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: “ Like other sciences, medicine is not an exact science and that is why expert medical opinion is no different from other expert opinions and such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 48. In Apex Security Services Limited v Joel Atuti Nyaruri [2018] KEHC 7559 (KLR) the court underscored that: “ I fully concur that expert evidence should not trump all other evidence, that it should not be considered in a vacuum and that same should be evaluated in the context of other evidence. This is to say that even though experts are called upon to assist the court to evaluate complex matter, the said evidence is not compelling on its own.” 49. Similarly in Christopher Ndaru Kagina vs. Esther Mbandi Kagina & Another [2016] eKLR the court stated that – “ The fundamental characteristic of expert evidence is that it is opinion evidence. To be practically of assistance to a court, however, expert evidence must also provide as much detail as is necessary to allow the court to determine whether the expert’s opinions are well founded. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 9

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While the test for admissibility of expert evidence differs from jurisdiction to jurisdiction, judges in all jurisdictions face the common responsibility of weighing expert evidence and determining its probative value. This is no easy task. Expert opinions are admissible to furnish courts with information which is likely to be outside their experience and knowledge. The evidence of experts has proliferated in modern litigation and is often determinative of one or more central issues in a case. Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decisionmaking process as it deserves; no more, no less. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence and the circumstances of the case including the real likelihood of the expert witness having been compromised or the real possibility of such witnesses using their expertise to mislead the court by placing undue advantage to the party in whose favour they offer the evidence. The court must be alert to such realities and act with caution while analyzing such evidence. It is important to bear in mind the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Four consequences flow from this as reiterated by this court in the case of Stephen Wang'ondu Vs The Ark Limited. Firstly, expert evidence does not “trump all other evidence.” It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional one.” 50. The court in Re Estate of Gitau Njoroge ‘B’ (Deceased) [2018] eKLR observed that: “ The findings of an expert witness are not binding on a court. Such findings amount to no more than mere opinion. Although the same are admissible as evidence, they are not conclusive, the court has to evaluate them alongside any other available evidence.” 51. The report by Elite Tax and Management Consultant Limited is fundamentally flawed. It is a desktop analysis that simply aggregates the value of invoices from suppliers without any independent, verifiable proof that the stock listed in those invoices was physically present in the premises on the day of the attack. The report admits that it "carried out stock taking to establish balances," but provides no details of when this was done, by whom, or what methodology was used. It accepts the Petitioners' narrative without critical interrogation. An expert report that is based on unverified instructions and assumptions provided by a client, without a demonstrable factual audit trail, lacks probative value and is incapable of sustaining a claim for damages, let alone one of this magnitude. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 10

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52. Furthermore, the claim for special damages fails to meet the well-known standard set in Herbert Hahn v Amrik Singh (supra) that special damages must not only be specifically pleaded but also strictly proved. The Petitioners have presented a cascade of invoices. However, as correctly pointed out by the Respondents and affirmed in cases like Swalleh C. Kariuki & another v Viloet Owiso Okuyu (supra), an invoice is a request for payment, not proof of payment or conclusive proof of the existence and value of goods at a specific location and time. The Petitioners needed to provide evidence such as signed delivery notes confirming receipt of the goods, stock records, or insurance records, which they have not done. The leap from possessing purchase invoices to proving the specific loss of those exact goods in the riot is a chasm the Petitioners have failed to bridge. 53. On the alleged violation of the right to fair administrative action under Article 47, the Petitioners argue that the presidential directive was implemented without affording them a hearing. However, the directive was a general policy measure aimed at addressing a national crisis. It was not an administrative action directed specifically at the Petitioners. A general government policy or directive does not typically attract the duty of prior hearing for every member of the public potentially affected. While the directive was subsequently declared unconstitutional in Keroche Breweries Limited & 6 Others vs Attorney General & 10 Others (supra), that declaration does not, by itself, establish a specific violation of the Petitioners' personal rights under Article 47, absent proof of how the directive was applied to them in a procedurally unfair manner by the named Respondents. 54. In conclusion on this issue, the Petitioners' case is riddled with evidential deficits. They have failed to prove the direct involvement of the 4th Respondent, failed to demonstrate a culpable failure by the 2nd Respondent, failed to provide admissible evidence of the destruction, and failed to strictly prove the quantum of their loss. Their case rests on a foundation of inadmissible documents, unproven assertions, and an unreliable expert report. Whether the Petitioners are entitled to the reliefs sought, speciffically the award of special and general damages 55. Given the findings on the first two issues, the question of remedies is largely academic. A party seeking constitutional relief must first prove a violation. As the Petitioners have failed to discharge this primary burden, the consequential prayer for damages must fail. 56. In Romauld James v. AGT [2010]UKPC Lord Kerr at paragraph 13 cited a passage from the judgment of Kangaloo JA in the same case. Kangaloo JA said: “ [28]. In my view, it does not lie in the mouth of the appellant to say that he is not obliged to place evidence of damage suffered before the constitutional court before liability is determined. I say so because it must first be shown that there has been damage suffered as a result of the breach of the constitutional right before the court can exercise its discretion to award damages in the nature of compensatory damages to be assessed. If there is damage shown, the second stage of the award is not available as a matter of course. It is only if some damage has been shown that the court can exercise its discretion whether or not to award compensatory damages. The practice has developed in constitutional matters in this jurisdiction of having a separate hearing for the assessment of the damages, but it cannot be overemphasized that this is after there is evidence of the damage. In the instant case there is no evidence of damage suffered as a result of the breaches for which the appellant can be compensated.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 11

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57. In Bangue Indosuez vs DJ Lowe and company Ltd [2006] 2KLR 208 the Court held inter alia that; “ It was trite that special damages must not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and probability of proof required depends on the circumstances and the nature of the acts themselves.” 58. The claim for special damages of Kshs.56,770,000/= collapses for the reasons already elaborated: the inadmissibility of key evidence and the failure to strictly prove the loss. The claim is speculative and unsubstantiated. 59. With regards to general damages, the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General Civil Appeal No 98 of 2014 [2016] eKLR stated that: “ … award of damages for constitutional violations of an individual's right by state or the government are reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements.” (Emphasis) 60. The Supreme Court of Canada established a consideration on when a remedy in a Constitutional violation case is “just and appropriate” in Doucet-Boudreau vs Nova Scotia (Minister of Education), 2003 SCC 62 to include, a remedy that will: “ (1) meaningfully vindicate the rights and freedoms of the claimants;(2) employ means that are legitimate within the framework of our constitutional democracy;(3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made.” 61. The claim for general damages for constitutional violations similarly fails. The award of general damages for a constitutional violation is predicated on a clear finding that a right has been infringed. In the absence of such a finding, no such award can be made. 62. From the foregoing, this is a tragic case where the Petitioners appear to have suffered a significant commercial loss. However, the role of this Court is not to provide solace for all misfortunes but to adjudicate disputes based on evidence and law. The Petitioners embarked on the ambitious journey of a constitutional petition, which carries a high standard of proof, particularly when alleging violations by state organs. Regrettably, they failed to equip themselves with the necessary, admissible, and credible evidence to complete this journey. 63. The Petition is built on a flawed evidential foundation. The attempt to amend sworn evidence was a fatal misstep, and the failure to comply with the statutory requirements for electronic evidence was a critical omission. The core allegations against the state office remain in the realm of speculation, and the claim for damages is unsubstantiated. 64. Consequently, the Petition is devoid of merit and is hereby dismissed in its entirety with no orders as to costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 12

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Orders accordingly. File closed accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025. ________________________ BAHATI MWAMUYE MBS JUDGE In the presence of: Counsel for the Petitioners -. Mbabi Counsel for the Respondents – Ms. Mwasao Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19221/eng@2025-12-04 13

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