High Court 19367 of 2025

2. The 1st Respondent is the Principal Secretary in charge of State Department of Planning in Ministry of Devolution and Planning. The Petitioners state that all the IDPS resettlement programs fall under this Ministry. 3. The 2nd Respondent is the Principal Secretary in charge of State Department for Interior under which the National Consultative Committee on Internally Displaced Persons (NCCC) falls. 4. The 3rd Respondent is the Principal Legal Advisor of the government of the Republic of Kenya. The Petitioners’ Case 5. Through a Petition dated 14th December 2020 and amended on 22nd February 2023, the Petitioners sued the Respondents seeking the following orders: (a) A Declaration that the respondents’ payment of Kshs. 60,000/= (Sixty Thousand Only) to the vetted internally displaced persons from Nyamira as against the Kshs. 400,000/= (Four Hundred internally Thousand displaced Only) paid persons to other in other jurisdictions within Kenya is discriminatory, illegal, malicious and unconstitutional. (b) An order that the petitioners be paid Kshs. 400,000 each less Kshs. 60,000/= (Sixty Thousand Only) as compensation in tandem with all other jurisdictions within the Republic of Kenya. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 2 OF 52

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(c) A declaration that the persons whose names are filed herein on whose behalf this petition has been brought are genuine integrated Internally Displaced Persons who are entitled to full compensation but have not yet been compensated and that their rights guaranteed under Article 27, 28, 29, 43 and 47 of the Constitution have been violated by the respondent. (d) An order that the respondents do pay general damages to the petitioners for violating their rights. (e) Costs of this petition. (f) Any other relief this court deems fit to grant. 6. A summary of the Petitioners’ case was that they had migrated from their original ancestral homes and settled in parts of the Rift Valley and Nyanza Provinces prior to the disputed 2007 general elections. They state that following the said disputed elections, violence erupted within the Republic of Kenya as a result of which they were violently evicted from the Rift Valley and other areas where they had settled thereby resulting in loss of their homes, properties and belongings. 7. The Petitioners claim that following the restoration of peace in the country, the government initiated the resettlement of IDPs by offering them monetary support to enable them rebuild their lives. They state that in some instances, IDPs JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 3 OF 52

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were offered parcels of land to build their shelters and to some extent, houses were to be built for them. 8. The Petitioners averred that through Legal Notice No. 11 of 2008, a board christened National Humanitarian Fund Board was formed and mandated to resettle Post Election Victims (PEVs) including the Petitioners herein. 9. They averred that the government’s resettlement program was to provide assistance to the IDPs in the following terms: a. Kshs. 10,000 for startup and reconstruction of burnt up or destroyed houses. b. Kshs. 25,000 for reconstruction of basic housing to internally displaced persons whose hoses were burnt or destroyed, and c. Land measuring 2 ¼ acres to each family displaced by the violence. 10. The Petitioners state that out of the Respondents discriminated against them and did not resettle them in accordance with the program as they were only paid the sum of Kshs. 60,000 while IDPs from other regions were paid Kshs. 400,000 and given land on which to build their homes. 11. The Petitioners listed the particulars of discrimination and/or malice as follows: a. Failing to compensate the petitioners Internally Displaced persons in accordance with Legal Notice No. 11 of 2008. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 4 OF 52

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b. Discriminating the petitioners internally displaced persons herein in terms of failing to compensate them as other IDPs from various jurisdictions within the Republic of Kenya. c. Failing to honour the provisions of Legal Notice No. 11 of 2008. d. Taking inordinately long to compensate with the payment stretching to as late as the year 2020. e. Keeping their spirit high for over 10 years without the desired compensation. Whereas other Internally Displaced persons were long compensated and/or resettled. 12. The Petitioners averred that the criteria used by the Respondents to compensate the Petitioners was wrought with confusion, lack of transparency thereby delivering sinister or unclear intention on the part of the Respondents as the bodies tasked with issues relating to IDPs. They stated that processes attendant thereto and the overtures on the part of the Respondents do not meet the constitutional criteria of non-discrimination on the basis enumerated by Article 27 of the Constitution. 13. The Petitioners further averred that they made several attempts to follow up the matter with the Respondents to no avail. They state that the Respondents’ actions have condemned them to continue living in deplorable conditions and that their Constitutional rights to Equality and Freedom under Article 27 of the Constitution, their rights to dignity JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 5 OF 52

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under Article 28 of the Constitution have been violated and continues to be violated. 14. They state that the Respondents’ attitude and action are bereft of legal and constitutional justification as they have ignored the due process of the law and the Petitioners’ reasonable expectation. They contend that the Law and constitutional rights available to them have been ignored in total thus rendering the entire process unconstitutional, callous, oppressive, unfair, unreasonable and untenable. 15. The Petitioners further averred that they are apprehensive that if the discriminatory actions of the Respondents are allowed to continue unabated, it will occasion them irreparable emotional, physical and economical loss and suffering considering that they do not have a place to call their abode and/or to do farming which was their main economic activity. 16. At the hearing of the Petition, the Petitioners presented the evidence of the following 50 Petitioners who, they stated, had authority to testify on behalf of the rest of the Petitioners. The 50 Petitioners were as listed here below: - No . Name of Witness Date Testified 1. Nature of Witness PW-1 Naftali Ogeto Aboko 14/06/2023 2. PW-2 Samuel Mokaya Boera 14/06/2023 3. PW-3 David Obondi Nyamwaye 14/06/2023 4. PW-4 Sporat Nyaboke Onsate JUDGMENT – HCCHRPET NO. E001 OF 2020 14/06/2023 PAGE 6 OF 52

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5. PW-5 Henry Mwamba Nyagaka 14/06/2023 6. PW-6 Joseph Bosire Ombuse 14/06/2023 7. PW-7 Simion Atandi 13/06/2023 8. PW-8 John Agima 13/06/2023 9. PW-9 Daniel Okemwa 12/06/2023 10. PW-10 Samuel Oyaro 12/06/2023 11. PW-11 Batiseba 12/06/2023 12. PW-12 Isaack Mosigisi 12/06/2023 13. PW-13 Alice Kwamboka 12/06/2023 14. PW-14 Justus Ongera Momanyi 12/06/2023 15. PW-15 Callen Kemunto Bosco 12/06/2023 16. PW-16 Charles Chacha Masiba 12/06/2023 17. PW-17 James Rori 12/06/2023 18. PW-18 Daniel Ongwae 12/06/2023 19. PW-19 Alloys Ocharo Momanyi 18/12/2023 20. PW-20 Josphine Moraa 18/12/2023 Nyang’au 21. PW-21 Joseph Misesi Zakayo 22. PW-22 Christopher 18/12/2023 Nyabuto 18/12/2023 George 23. PW-23 Dennis Nyabuto Ounga 18/12/2023 24. PW-24 Veronica Nyarisa Mokua 18/12/2023 25. PW-25 James Agwata Nyachiro 18/12/2023 26. PW-26 Ronald Mobisa Omari 18/12/2023 27. PW-27 Haron Nyaboga 18/12/2023 Bwounga 28. PW-28 Thomas Aberi Nyareru JUDGMENT – HCCHRPET NO. E001 OF 2020 18/12/2023 PAGE 7 OF 52

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29. PW-29 Thomson Omagwa 18/12/2023 Change 30. PW-30 Joseph Ochawangi Osoro 18/12/2023 31. PW-31 Daniel Mikae Nyakongo 18/12/2023 32. PW-32 Joseph Seme Mogambi 18/12/2023 33. PW-33 Zachariah Kennedy 18/12/2023 Keoro 34. PW-34 Kennedy Onganyi Moseti 08/04/2024 35. PW-35 Mary Nyakerario Anyega 08/04/2024 36. PW-36 Askah Kwamboka Omari 08/04/2024 37. PW-37 Peter Oganga Makori 08/04/2024 38. PW-38 Hyline Kwamboka Osiaro 08/04/2024 39. PW-39 John Ogero Mogambi 08/04/2024 40. PW-40 Damaris Kwamboka 08/04/2024 Orina 41. PW-41 Veronica Nyangarisa 08/04/2024 Mokua 42. PW-42 Rudia Kemuma Masese 08/04/2024 43. PW-43 Jane Pamela Onduko 08/04/2024 44. PW-44 Ernest Mbaka Makori 08/04/2024 45. PW-45 John Masese Moiruruki 08/04/2024 46. PW-46 Zakayo Obwaru 08/04/2024 47. PW-47 Haron Nyaboga 08/04/2024 Bwounga 48. PW-48 Annah Angima 08/04/2024 49. PW-49 Paul Masese Omari 08/04/2024 50. PW-50 Doris Nyanchera Masese 29/05/2024 JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 8 OF 52

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17. A summary of the Petitioners’ witnesses’ testimonies, as presented by 50 witnesses and as is contained in their respective witness statements was that they had, prior to the year 2007/2008, migrated from Nyamira County and settled in parts of Rift Valley and Nyanza provinces where they lived and carried on businesses. They stated that following the PEV of 2007/2008, they were forcefully evicted from the homes/areas where they had settled for many years as a result of which they suffered loss of businesses, land and other property. 18. The Petitioners testified that following the PEV, the Kenyan government vetted the victims and paid those who were found to be genuine IDPs the sum of Kshs. 60,000. They stated that the said amount was deposited in their respective bank accounts held at Kenya Commercial Bank after which they were told to await more payment which was however not made thereby triggering the filing of the instant petition. 19. The Petitioners testified that they had information that IDPs from other regions were paid Kshs, 400,000 as compensation yet no reasons or explanation was given to them as to why they were discriminated during such payment and not given the land that the Respondents had promised them. It was the Petitioners’ case that all PEV victims should have been given equal treatment without any form of discrimination whatsoever. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 9 OF 52

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20. The Petitioners therefore claimed for the payment of the balance of Kshs. 340,000 and contended while IDPs from other areas like Nakuru were compensated through payment of the sum of Kshs. 400,000/= each, they were only paid Kshs. 60,000/=. They argued that the difference in the payments made to them and those made to other IDPs amounted to discrimination thus violating the provisions of the Constitution, to wit, Articles 27, 28, 29, 40, 47, 50, 258 and 259 thereof. 21. The Petitioners testified that they did not sign any documents or contracts to signify or confirm the payments that were due to them or that they had received. They also confirmed that the IDPs register was closed on 31 st December 2008 and that the instant Petition was filed in 2020. 22. They stated that the government (the Respondents) promised to buy them land like other IDPs but that the promise was not fulfilled. 23. They faulted the Respondents for failing to provide them with security thereby resulting in the misfortune that befell them following the Post-Election Violence that led to their eviction from their homes. 24. The Petitioners produced the following documents as exhibits: 1. Identity Cards and Bank Account details of all petitioners. 2. Legal Notice No. 11 of 2008. 3. List of IDPs in this case. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 10 OF 52

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4. List of Government Procured Farms for Settlement of IDPs. 5. List of IDPs who were paid Kshs. 200,000/= and Kshs. 400,000/= respectively. 6. Demand Letter dated 4th February 2020. 7. A Letter from the Attorney General dated 6th February 2020. 8. Extract from Public Finance Management Regulations, 2017. 9. Executive Summary of progress regarding resettlement of IDPs from Ministry of Interior. 10. Copies of Bank Statements showing Deposits from the Respondents. 11. Authority to Act, signed by the Petitioners. 25. Each of the Petitioners claimed the sum of Kshs. 340,000/=, being the balance or the difference between the Kshs. 60,000/= that they were paid and the Kshs. 400,000/= that was allegedly paid to IDPs from other areas. 26. The Petitioners stated that they had not gone back to the land/property from which they had been evicted due to insecurity. The Respondents’ Case 27. The Respondents opposed the Petition through the Replying Affidavit of Mr. Kepha Onyiso, a State Counsel in the office of the Attorney General who averred as follows: 1. THAT following the 2007-2008 post-election violence, 663,921 individuals comprising of JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 11 OF 52

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295,416 households throughout the were Country profiled having been displaced from their homes. 2. THAT the IDPs faced different situations and needs and different solutions and approaches were undertaken for different categories of the affected people who were grouped into three main categories as follows: I. 70,000 IDP households comprising 350,000 individuals who agreed to voluntarily return to their farms through 'rudi nyumbani' operation and this group was paid Kshs. 10,000/ = and others Kshs. 25,000/= for the construction of their houses that had been destroyed during the violence; II. 8,754 households which included 2,574 Turkana IDPs formed self-help groups that were profiled by the Ministry before the deadline that was set at 30th December, category was 2008. This by the settled Government in Government procured land with the exception households who were 400,000/= each in of paid 817 Kshs. lieu of resettlement. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 12 OF 52

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III. The rest of the IDPs living among the various communities in the country were paid Kshs. 10,000/= as start-up capital to enable them rebuild their lives. 3. THAT the IDPs faced different situations and needs, different solutions and approaches were undertaken for different categories of the affected people who were grouped into three main categories. understandable why It is therefore, different categories received different amounts of money as compensation. 4. THAT the Kisii IDPs were classified as integrated IDPs and those cleared for compensation were 17,385 only to whom the Government disbursed a total of Kshs. 181,200,000 to be paid as start-up capital and an additional Kshs. 8,025,000/= to be paid for construction of houses that had been burnt during violence. 5. THAT the claim for compensation and/or resettlement by the Petitioners coming up in Court in 2020 more than 12 years after the fateful events cannot be free from infiltration by joy riders seeking to reap from the State even though they may not have been affected by displacement. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 13 OF 52

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6. THAT the Petitioners claim that IDPs from other regions were given better treatment by the Government is not founded on any hard evidence or substantiated. 7. THAT the Government's compensation of IDPs will show that the payments were purely based on respective classifications of the IDPs which classification was rational. 8. THAT in any event the Government must reauthenticate the alleged list and weed out fraudsters in the unlikely event that the Court agrees with the allegations of the Petitioners. 9. THAT by assisting the IDPs the State merely made ex-gratia payments to the affected people without admitting liability for their alleged claims. 10. THAT the Petitioners have merely stated that they were IDPs who were allegedly compensated by being paid Kshs. 60,000/ = no evidence has been provided in the Petition that they actually were displaced as a result of the post-election violence of 2007-2008. 11. THAT even though the Government owes a duty to the citizens to protect their lives and property, the victim mentality that is being exhibited by persons or groups of people in JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 14 OF 52

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the like of the Petitioners herein as a way of seeking Government assistance every time a calamity strikes must have its limits and time frame. 12. THAT the Government officially closed its register of claimants way back on 31st December, 2008. The Petitioners have to rise up, shake off the dust and move on with their lives. 13. THAT where treatment there between is a persons difference in who in are comparable situations with no objective or reasonable justification then Article 27 of the Constitution may be deemed to have been breached. The Petitioners therefore, need to show first that they were displaced persons, secondly, that displaced persons under similar circumstances received compensation from the State, and thirdly that they were unfairly and unjustifiably paid lower amounts of money as compensation. 14. THAT the Petitioners have not proved the alleged violation. 15. THAT for the Petitioners to benefit from the provisions of Constitution, Article they need 27 to (4) of the demonstrate which IDPs received preferential treatment JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 15 OF 52

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and assistance from the Government that they did not receive. 16. THAT there is no evidence annexed in the Petition demonstrating what was taken away from them in terms of property. The claim for compensation is just hanging without probable evidence. 28. At the hearing of the Petition, the Respondents’ deponent, Mr. Kepha Onyiso, adopted the contents of his Replying Affidavit as his evidence in chief. On cross examination, he confirmed the authenticity of a letter dated 5 th June 2017 from the then Permanent Secretary, Interior Ministry, Mr. Karanja Kibicho. He stated that the letter indicated that payment of Kshs. 50,000/= was to be made to each of the Nyamira IDPs. 29. The witness also confirmed that some IDPs were given shelter and paid Kshs. 400,000/=. He explained that the difference in the payments was informed by the difference in the circumstances faced by the different categories of IDPs. 30. Mr. Onyiso testified that it was not possible to generalize the IDPs. He explained that the payment of Kshs. 60,000/= made to the Nyamira and Kisii IDPs was an ex-gratia payment without admission of liability and not compensation. He further stated that some of the IDPs who volunteered to return to their farms were paid Kshs. 10,000/= while those who settled in government procured land were paid Kshs. 400,000/=. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 16 OF 52

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31. He stated that the IDPs living within communities were paid Kshs. 100,000/=. He further explained that the payments were made based on the information that the IDPs gave to the government at the time of their vetting. He added that payments were made after proper vetting of the IDPs by the vetting committees at the District or County levels. 32. He confirmed that 17,385 IDPs were cleared from Nyamira and Kisii and that the government disbursed money to be paid to them on ex-gratia basis as start-up capital to enable them rebuild their lives. 33. He explained that the Petitioners were not discriminated as there were IDPs from Nyanza and Western who were not given land. 34. He testified that the PEV involved displacement, deaths and loss of property and that the vetting committee established the circumstances of each IDP. 35. At the close of the hearing, parties filed and exchanged their respective written submissions which I have considered. The Petitioners’ Submissions 36. The Petitioners identified the following issues for this court’s determination: a) Whether the Petitioners are internally displaced persons as a result of the 2007/2008 election related violence. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 17 OF 52

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b) Whether other internally displaced persons in comparable situations received commensurate compensation from the Respondents. c) Whether there was justifiable rationale in according internally displaced persons from Kisii and Nyamira lesser compensation amounting to Kshs. 60,000 compared to those from other jurisdictions who received Kshs. 200,000 and Kshs. 400,000 in addition to 2 ½ acres of land. d) What is the appropriate compensation? e) Who should bear the costs of this petition? 37. On whether the Petitioners are IDPs as a result of the 2007/2008 election related violence, it was submitted that the Petitioners were duly vetted, issued with identity cards in the form of bank accounts certificates and confirmed to be internally displaced persons when they were paid Kshs. 60,000 which the Respondents declared to be ex-gratia payment. 38. On whether other internally comparable situations compensation from the displaced received Respondents, persons in commensurate the Petitioners submitted that the ex gratia payments made to the Petitioners should have applied to across the board to all the IDPs and not only to the Petitioners. The Petitioners drew the court’s attention to the lists that they had produced during the hearing which contained the names of IDPs who were paid Kshs. 200,000, Kshs. 400,000 and a list JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 18 OF 52

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of government procured farms for settlement of internally displaced persons. 39. The Petitioners contended that the Respondents did not provide a justified criteria on why they were paid Kshs. 60,000 and not 400,000. They referred to the Legal Notice No. 56 of 2012 that established the National Consultative Coordination Committee for the Internally Displaced Persons and submitted that the said committee did not table its report to confirm the criteria it used in awarding the Petitioners Kshs. 60,000. 40. It was submitted that the Petitioners were discriminated by the Respondents in the implementation of the resettlement program and that the funds paid to the Petitioners did not fully address their plight as they were displaced from their farms and their property destroyed. Reference was made to the case of Peter K. Waweru v Republic [2006] eKLR where it was held: “affording different treatment to different persons attribute wholly or mainly to their respective descriptions by race, tribe, place of origin or residence or other local connection, political opinions, colour, creed or sex whereby person of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.” JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 19 OF 52

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41. On the freedoms alleged the violation Petitioners of rights and fundamental submitted that the 18,262 registered internally displaced persons within Nyamira and Kisii Counties were not resettled in accordance with the government’s programme. The Petitioners argued that they were left out of the resettlement programme for no apparent reason. They submitted that the Respondents’ action of excluding and discriminating as against them was not only illegal and unlawful but also contrary to the dictates of the Constitution. They added that they legitimately expected all the IDP's to be treated equally irrespective of where they came from. 42. It was submitted that the intentions and processes undertaken by the respondents smacked of malice and violated the Petitioners rights under Article 40 as read with Article 27 of the Constitution and Section 107 of the Land Act 2012. 43. The Petitioners submitted that despite the fact that they were subjected to the vetting process conducted by the Respondents’ agents they were discriminated against during compensation in violation of Article 27 of the Constitution. 44. The Petitioners' argued that failure by the Government to compensate them according to the Legal Notice No. 11 of 2008 was in itself discriminatory, actuated by malice and a violation of the Constitution. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 20 OF 52

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45. They added that failure by the Respondents to protect the lives of their loved ones was a total violation of their constitutional rights under Article 29 of the Constitution. 46. On the appropriate compensation payable to the Petitioners, reference was made to several decisions including the case of Dendy vs. University of Witwatersrand, Johannesburg & Others (2006) 1 LRC 291 where the Constitutional Court of South Africa held that: “The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases. ….” The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff’s interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.” JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 21 OF 52

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47. It was submitted that the list of IDPs from other regions who were paid Kshs. 200,000 and 400,000 indicates that they came from the Kalenjin ethnic community thus pointing to the fact that the Petitioners were discriminated on account of ethnic or social origin and language. The Petitioners argued that the fact that the Respondents, as the custodians of the payment register, were better placed to give the exact amounts that were paid to the IDPs. 48. It was the Petitioners’ case that they had disclosed a reasonable cause of action to warrant the granting of the orders sought in the Petition. The Respondents’ Submissions 34. The Respondents, on the other hand, submitted that the Petitioners had not demonstrated how their Constitutional rights were violated and the harm occasioned to them as a result of the alleged violation. 35. The Respondents submitted that the Petitioners confused and/or failed to appreciate that the Kshs. 60, 000/= paid to them was an ex-gratia payment and not an admission of liability. They faulted the Petitioners for failing to plead their case with precision. 36. On the alleged violation of Article 27 and 40 of the Constitution, the Respondents submitted that the same cannot be sustained as most of the Petitioners claimed that they had lost a lot of properties, but on cross examination, did not give any satisfactory explanation on why they did JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 22 OF 52

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not see the need to go back to their land, or better still sell and/or dispose of the property. The Respondents cited the decision in the case of John Kiplangat Barbet & 3 Others vs. Attorney General 74 Others [20131eKLR, where the court relied on the definition of discrimination given by the Committee of 'the International Convention on Civil and Political Rights' in the General Comment 18, Nondiscrimination (Thirty- seventh session 1989) where the term discrimination was defined to imply: "Any distinction, exclusion, restriction, or preference which is based on any ground such as religion, race, colour, political or sex, language, other opinion, national or social origin, property, birth or other status and which has the purpose or effect of multiplying or impairing the recognition, enjoyment or exercise by all persons, on equal footing of all rights and freedoms" 37. The Respondents submitted that where there is a difference in treatment between persons who are in comparable situations which has no objective or reasonable justification then Article 27 of the Constitution may be deemed to have been breached. They argued that the Petitioners were therefore required to show first; that they were displaced persons, secondly; that displaced persons under similar circumstances received compensation from the State, and thirdly; that they were unfairly and JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 23 OF 52

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unjustifiably paid compensation. Petitioners lower amounts According failed to to the of money as Respondents, the demonstrate the aforesaid requirements. 38. It was submitted that since Internally Displaced Persons faced different situations, circumstances and needs, different solutions and approaches were undertaken for different categories of the affected people from different parts of the Country. The Respondents maintained that it was therefore understandable when different categories of IDPs received different amounts of money as ex-gratia payments and not compensation because there was no admission of liability. 39. On discrimination, the Respondents submitted that, for one to benefit from the provisions of Article 27 (4) of the Constitution, he or she needs to demonstrate which IDPs received preferential treatment and assistance from the Government that he or she did not receive. They reiterated that the Government has never admitted liability for what happened in 2007/2008 and that all the Government did was to help people to recover from the unfortunate events of 2007/2008. Reference was made to the decision in the case of Patron Internally Displaced Persons & Kisii Steering Committee vs. Cabinet Secretary, Ministry of Devolution & Planning of National Government [2016] eKLR where it was held that: “The question of IDPs, their compensation and/or resettlement is fairly a new matter JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 24 OF 52

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in our legal system such claims having arisen after 2007/2008 post-election violence. It is not lost to me that a claim for compensation coming up in 2015 almost 8 years after the fateful events cannot be free from infiltration by joy riders seeking to reap from the state even though they may have not been affected by the displacements.” 40. It was submitted that the Petition does not meet the requirements of a constitutional petition. Reliance was placed on the decision in the case of David Gathu Thuo vs. Attorney General & Another [2021] eKLR, the High Court held that: “Looking at the Petitioner's pleadings, the evidence as well as the submissions of the parties, it is my conserved view that the Petitioner has not met the requirements of a Constitution Petition. Although the Petitioner has pleaded provisions of the Constitution, he has not demonstrated to the required standard how his individual rights and fundamental freedoms were violated, infringed threatened by the respondents. or He has not adduced any evidence to demonstrate the alleged violations.” Petitioners’ Response to Respondents’ Submissions JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 25 OF 52

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41. In a rejoinder to the Respondents’ submissions, the Petitioners argued that they were treated unfairly and discriminated during compensation of the IDPs after the 2007 post-election violence. They explained that they each received Kshs. 60,000 from the government without any explanation on the criteria that was employed to determine the amount payable to them. They contended that other internally displaced persons in similar circumstances were paid between Kshs. 200,000 and Kshs. 400,000, and in some cases, given land and houses as well. 42. The petitioners contended that this difference in the payments was unfair and violated their constitutional right to equality and non-discrimination under Article 27 of the Constitution, as well as their right to access information under Article 35 of the Constitution, since the government did not explain how amounts paid were determined. 43. They also stated that the funds given were not gifts (exgratia payments), but public money that was legally allocated and that should have been distributed fairly. The petitioners supported their claims with government documents dated 14th December 2020, which were not challenged by the respondents. They urged the court to grant the orders sought in the Petition. Issues for Determination 49. Parties had, prior to the commencement of the hearing, agreed on the issues falling for the court’s determination as follows: JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 26 OF 52

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1. Whether payment of Kshs. 60,000/= to 18,261 persons, was an admission of liability or a token from the Government of Kenya to the petitioners. 2. Whether the Government is liable to pay to the Petitioners Kshs. 340,000/= as compensation, as compared to other IDPs from other parts of Kenya, which were affected. 3. Whether the criteria used in compensating the petitioners was discriminatory or selective in its very nature. 4. Whether the Government had a duty to compensate the petitioners in the first place. Analysis and Determination 50. I have carefully considered the pleadings filed herein, the oral evidence presented by the parties’ respective witnesses alongside the parties’ written submissions. I find that the main issues for my determination are as follows: a) Whether the petitioners proved, with the required precision and evidence, that they are IDPs of the 2007/2008 PEV and proper parties to this claim. b) Whether the Petition meets the threshold set for constitutional petitions. c) Whether the petitioners demonstrated differential treatment vis-à-vis comparable IDPs JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 27 OF 52

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and, if so, whether such differentiation was discriminatory contrary to Article 27 of the Constitution. d) Whether the respondents violated the petitioners’ rights under Articles 28, 29, 35, 43 and 47 of the Constitution. e) Whether the reliefs sought (equalisation to Kshs. 400,000 per petitioner, land allocation, general damages and ancillary orders) are merited. f) Costs. Proof of IDP status and standing 51. The petitioners called 50 witnesses who produced their identification, bank details and Kenya Commercial Bank statements showing deposits of Kshs. 60,000. The witnesses relied on registers and ministry correspondence to support their IDP status. The respondents did not controvert or contest the claim that payments were made to the Petitioners but instead characterised the payments as ex-gratia without admission of liability and stated that the Nyamira/Kisii IDPs were classified as integrated IDPs who only received start-up assistance. 52. Based on the material presented before this court, I am satisfied that a significant number of the petitioners are persons vetted by Government as IDPs or integrated IDPs of the 2007/2008 events. I however note that the petition, as framed, aggregates 18,262 individuals and seeks uniform monetary relief without granular proof of the JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 28 OF 52

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losses, locations and specific profiles for each claimant. In Anarita Karimi Njeru vs. Republic (1979) (No. 1) eKLR it was held that:“…a party who alleges a contravention of constitutional rights must set out with reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.” 53. Applying the principles set out in the Anarita case (supra) to this case, I find that the global approach adopted by the Petitioners herein suffices to ground a constitutional grievance, but it does not, by itself, establish entitlement to a uniform compensatory sum. I therefore find that while the Petitioners proved their IDP status as integrated IDPs receiving ex-gratia payments, their individual quantum and identical treatment are not automatically established. Threshold for a Constitutional Petition 44. It is trite that in a constitutional petition, a party who alleges violation of his or her rights must plead, with reasonable precision, the manner in which the said rights have been violated. This principle, established in the Courts’ jurisprudence, was pronounced in the celebrated case of Anarita Karimi Njeru (supra) which the Court of Appeal cited, with approval, in the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR and observed as follows: JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 29 OF 52

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“…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today: “The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties diminish to define expense and issues, and thereby delay, especially as regards the amount of testimony required on either side at the hearing.” The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were JUDGMENT – HCCHRPET NO. E001 OF 2020 enumerated. Further, PAGE 30 OF 52

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paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars. 45. The Court went further to state that: “We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (Supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these shortcomings, it was not enough for the superior court below to lament that the petition before it was not the “epitome of precise, comprehensive, or elegant drafting,” without requiring remedy by the 1st respondent…” 46. Similarly, in the case of Husus Mugiri vs, Music Copy Right Society of Kenya & another [2018] eKLR it was held as follows: JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 31 OF 52

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“18. In order for a petition to qualify to be a constitutional petition that seeks to enforce or protect fundamental rights and freedoms under the bill of rights, it must meet the test set in Anarita Karimi Njeru vs. Republic [1979] eKLR. That is, the applicant must specify which specific provisions of the Constitution that declare the rights, the specific rights and freedoms that have been or are threatened to be infringed or violated and the manner in which the respondent has infringed the subject rights. This position has been reiterated time and again.” 47. The same position was restated in Meme vs. Republic [2004] eKLR as follows:“Where a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with reasonable degree of precision that of which he complains, the provisions said to have been infringed and the manner in which they are alleged to have been infringed and that the applicant’s instant application had not fully complied with the basic test of constitutional references, as it was founded on generalized complaints without any focus on fact, law or Constitution, JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 32 OF 52

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hence it had nothing to do with the constitutional rights of the appellants”. 48. The principle that arises from the above cited cases is that well drafted pleadings cannot be overstated if a constitutional petition is to be sustained. Pleadings contain the ingredients that make or break a party’s petition. The centrality of well drafted pleadings was captured in the case of Kenya Pharmaceutical Association & another vs. Nairobi City County and the 46 other County Governments & another [2017] eKLR where it was held as follows: “33. The core issue here is to understand the function of and purpose of good pleadings. In this regard, I recall the words of the Australian Court[31]where Vickery J said this of the principles of good pleading:"In a mathematical proof, elegance is the minimum number of steps to achieve the solution with greatest clarity. In dance or the martial arts, elegance is minimum motion with maximum effect. In filmmaking, elegance is a simple message with complex meaning. The most challenging games have the fewest rules, as do the most dynamic societies and organizations. An elegant solution is quite often a single tiny idea that changes everything. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 33 OF 52

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… Elegance is the simplicity found on the far side of complexity. While elegance in a pleading is not a precondition to its legitimacy, it is an aspiration which, if achieved, can only but advance the interests of justice. A poorly drawn pleading, on the other hand, which does not tell a coherent story in a well-ordered structure, will purpose of fail to the achieve the exercise, central namely communication of the essence of case which is sought to be advanced. Pleading should not be dismissed as a lost art. It has an litigation important part conducted within to play in the civil adversarial system. Crafting a good pleading calls for precision in drafting, diligence in the identification of the material facts marshalled in support of each allegation, an understanding of the legal principles which are necessary to formulate complete causes of action and the judgment and courage to shed what is unnecessary. Although a primary function of a pleading is to tell the defending party what claim it has to meet, an equally important function is to inform the court or tribunal of fact precisely what issues are before it for determination. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 34 OF 52

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The function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial; The cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression “material facts” is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action; a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it.” 49. My interpretation of the reasoning in the above cited cases is that a constitutional petition must satisfy the threshold set out in the said authorities. This means that the mere citing of constitutional provisions allegedly violated is not enough as petitioners must, with some reasonable degree of precision, identify the constitutional provisions that are alleged to have been violated and the manner of their violation through the facts and evidence presented in the case. 50. In the instant case, the Petitioners stated that their fundamental rights under Articles 27, 28, 29 and 43 of the JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 35 OF 52

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Constitution had been violated. Demonstration of violation of these rights required the Petitioners to outline, by way of evidence, the factual basis upon which the rights can be said to have been infringed. 51. In the case of Edward Akong'o Oyugi & 2 others v Attorney General [2019] eKLR the court described this component of proof as follows:“72. Section 107 (1) of the Evidence Act [36] 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." Sub-section (2) provides that "when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person." Additionally, I have severally stated that all cases are decided on the legal burden of proof being discharged (or not). Lord Brandon once remarked:-[37]” 52. The Court went on to state that: “73. Whether one likes it or not, the legal burden of proof is consciously or unconsciously the acid test applied when coming to a decision in any particular case. This fact was succinctly put forth by Rajah JA in Britestone Pte Ltd vs Smith & Associates Far East Ltd[38] :“The court’s decision in every case will depend on whether the party concerned has satisfied JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 36 OF 52

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the particular burden and standard of proof imposed on him” It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. Court decisions cannot be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in improper use of judicial authority and discretion. It will be a recipe for ill-considered opinions. The presentation of clear evidence in support of such prejudice is a prerequisite to a favourable determination on the issue under consideration. Court decisions cannot be based upon the unsupported hypotheses.” 53. The Petitioners’ case was that they were duly vetted and identified as genuine IDPs from Nyamira County eligible to be given ex gratia payments. They stated that they were each paid Kshs. 60,000 as compensation for the losses that they had suffered but argued that the said payment was way less that the amount that was paid to IDPs from other regions of the country thus giving rise to the claim that the had been discriminated. 54. As I have already stated in this judgment, the Respondents conceded that each Petitioner was paid Kshs. 60,000 but added that since Internally Displaced Persons faced different situations/circumstances they adopted different interventions, solutions and approaches when dealing with JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 37 OF 52

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different categories of IDPs from different parts of the Country. According to the Respondents, different categories of IDPs received different amounts of money as ex-gratia payments and that such payment did not amount to admission of liability. 55. The question that arises is whether the Respondents were liable to compensate the Petitioners in the first place. 56. It is not in doubt that the Constitution places upon the state an obligation to protect all citizens from violent acts which can lead to a violation of their rights. In the case of Charles Murigu Muriithi & 2 Others vs. Attorney General 2015 eKLR, the court held as follows: “it is therefore our finding that the State through its security agencies, including the Police, has a positive obligation and duty to facilitate and create a peaceful environment in which rights enshrined in the Constitution, including the right to security of the person and to property, would be freely and fully enjoyed by persons within its jurisdiction”. 57. The State will however only be held liable for actions of non-state actors where it is shown that it breached its duty of care. This means that there must be culpability on the part of State agents for liability to ensue. In the said case of Charles Murigu Muriithi case (supra) the court went on to hold that: “The State’s duty to protect those rights would only be activated if it is demonstrated that the JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 38 OF 52

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police or other State agencies had prior information that a section of the members of the public in a certain area, or specific individuals, were in danger of being subjected to acts of violence against their person or property and that the police, negligently or deliberately, failed to act on such information leading to a violation of the rights protected under the Constitution”. 58. In order to prove the claim that the state was culpable to compensate them for the violation of their rights, the Petitioners had to show that the state, with full knowledge of the imminence of the post-election clashes, failed to exercise due care to prevent the violence that occurred. This was not established. The Petitioners did not show that the State being fully aware that their rights were under threat negligently and/or recklessly failed to take requisite measures to protect them. Indeed, the 2007/2008 postelection violence was in many ways said to have been spontaneous, and took many in the country by surprise. Even with the resources available to it, the State cannot be said be have been aware, in advance, just how widespread and how destructive the violence would be. (See Paul K. Waweru & 4 others vs. Attorney General & 2 others [2016] eKLR ). I find that the Respondents cannot in the circumstances of this case be held liable for the actions of non-state actors without proof of culpability. This must have informed the decision, by the state, to offer ex gratia JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 39 OF 52

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payments to the people identified as having been affected by the PEV as opposed to the payment of compensation for loss or damage suffered in the PEV. 59. Indeed, the Legal Notice No. 11 of 30th January 2008 that established the (Humanitarian Government Fund for Financial Mitigation of Management Effects and Resettlement of Victims of Post-2007 Election Violence) Regulations, 2008 lists the objects of the fund at Section 3(2) thereof as follows: The object and purpose of the fund is to provide ex gratia fund for – (a) The resettlement of persons displaced as a result of the postelection violence. (b) Replacement of basic household effects destroyed as a result of post2007 election violence. (c) Enabling the victims of the post- 2007 election violence restart their basic livelihood. (d) The reconstruction of basic housing, rehabilitation of community utilities and institutions destroyed as a result of post-2007 election violence. [Emphasis added]. 60. Section 2 of Internally Displaced Persons and Affected Communities Act No. 56 of 2012 defines an “internally displaced person” as follows:JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 40 OF 52

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“A person or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, large scale development projects, situations of generalized violence, violation of human rights or natural or human made disasters, and who have not crossed an internationally recognized state border.” 61. My finding is that to the extent that the issue of whether the Petitioners were bona fide IDPs was not contested by the Respondents as shown in their admission that they were each paid Kshs. 60,000 on ex gratia basis, the Petitioners discharged the burden of proving their entitlement to such payment by the state. 62. Turning to the issue of proof of the claim that the Petitioners were discriminated by the Respondents, the Petitioners contended that they did not receive similar compensation like other victims of the post-election violence. This claim is premised upon Article 27 of the Constitution of Kenya which guarantees the right to equality and freedom from discrimination. 63. In order to prove a claim under this limb the Petitioners were required to prove firstly that they were in actual fact victims of the post-election violence, secondly that other IDP’s in comparable situations received compensation from the State than them JUDGMENT – HCCHRPET NO. E001 OF 2020 higher and lastly that PAGE 41 OF 52

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they were unfairly and unjustifiably discriminated. I have already found that the Petitioners established that they are genuine IDPs having already been vetted by the Respondents’ agencies and paid the sum of Kshs. 60,000 on ex gratia basis. The only issue left for my determination is whether the Petitioners were unfairly and unjustifiably discriminated. 64. In their bid unjustifiably to prove that discriminated they were during unfairly and compensation, the Petitioners produced lists containing names of people alleged to have been paid Kshs. 200,000, Kshs. 400,000 and lists of farms/land allegedly procured by the government for the resettlement of IDPs. A cursory glance at the said lists reveals that identity and/or signatures of their respective author(s), the date on which they were compiled and their source(s) are not disclosed. Furthermore, the Petitioners did not call any of the persons (IDPs) listed in the said lists so as to confirm their existence and if they were actually paid Kshs. 400,000 as alleged or if the parcels of land listed therein were actually allocated to them. 65. It is my finding that the said lists lack the probative value that is expected from documentary evidence in establishing if the persons listed therein were paid more than the Petitioners. I find that the Petitioners did not discharge the burden of proof that rested on them through tangible evidence showing that there are IDPs who were paid more money than what was paid to them. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 42 OF 52

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66. My further finding is that even assuming, for arguments’ sake, that some IDPs were paid Kshs. 400,000, the Petitioners were still required to show that the said IDPs fell in the same category as the Petitioners considering the Respondents’ position that the IDPs were grouped in 3 different categories with each category being accorded different treatment based on their different and/or unique needs and circumstances. 67. My further finding is that it was not enough for the Petitioners to state that some IDPs were paid more than them. The Petitioners were required to show that they suffered the same fate as those other IDPs they alleged were paid more than them. Having found that the lists produced by the Petitioners in their quest to establish that certain groups of IDPs were paid more money than them lacked probative value, I find that Petitioners’ claim for additional sum of Kshs. 340.000 falls in the realm of pure guesswork or conjecture. This means that purely from an evidential standpoint, the petitioners were unable, on a preponderance of the evidence, to reach the threshold for grant of the reliefs sought in the petition. 68. Considering the evidence and the law, I cannot say that the Petitioners proved that the State acted out of malice or ulterior motive and violated their rights under Articles 27, 28 and 43 of the Constitution merely because it found it necessary to categorize different groups of IDPs based on their unique circumstances, when determining how much to pay them. I further note that the Petitioners did not tender JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 43 OF 52

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evidence to show that all the IDPs were affected by the PEV in a uniform manner so as to justify their claim that all the IDPs should have been accorded equal treatment in terms of compensation by the state. Indeed, this court takes judicial notice of the fact that while some IDPs only lost property during the PEV, some lost the lives of their loved ones in addition to loss of their property in which case, it would be unreasonable to expect the state to accord every IDP equal treatment when considering the issue of compensation or ex gratia payments. 69. This court further takes judicial notice of the novelty of PEV cases as a new phenomenon in our country as the occurrences of 2007/2008 were the first of their kind in Kenya. It is to be noted that even the laws dealing with PEV cases were formulated much later in the year 2012, at least five (5) years after the occurrence of the unfortunate events in question. In this regard, it must be appreciated that when dealing with the issue of the IDPs, the state was faced with a daunting task of having to deal with thousands of displaced persons in a national catastrophe of unprecedented proportions. It is with the above scenario in mind that the court appreciates the fact that the process of resettlement of IDPs could not have been flawless or that the state (read the taxpayer) could have availed all the resources required to adequately and uniformly compensate all the affected persons. 70. I also find that the Petitioners’ allegation that those paid Kshs. 200,000–400,000 “came from one ethnic group” was JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 44 OF 52

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not backed by any reliable, comprehensive proof connecting the decision-making to ethnicity or language. On the contrary, I note that State/Respondent placed uncontroverted evidence to show that 817 households were paid Kshs. 400,000 in lieu of resettlement on land, 70,000 households received Kshs. 10,000 and/or 25,000 in Rudi Nyumbani programme while integrated IDPs (including the petitioners) were paid modest start-up sums. It is my view that this policy differentiation is capable of a rational connection to the objectives of emergency humanitarian support and finite public resources. 71. My finding is that in the absence of cogent proof that similarly situated IDPs to the petitioners (i.e., integrated IDPs in other counties) were paid Kshs. 400,000 plus land, I am unable to find unfair discrimination. The petitioners’ lists did not disaggregate categories to enable a like-for-like comparator analysis. I therefore find that the petitioners have not proved unfair discrimination under Article 27 of the Constitution. 72. It is my view that from the foregoing analysis and the material placed before this Court, the Petitioners did not prove unfair discrimination under Article 27 of the Constitution. I am guided by the the holding in the case of Edward Akong'o Oyugi & 2 others (supra) where the court observed that: “…Court decisions cannot be made in a factual vacuum. To attempt to do so would trivialize the Constitution JUDGMENT – HCCHRPET NO. E001 OF 2020 and inevitably result in PAGE 45 OF 52

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improper use of judicial authority and discretion. It will be a recipe for ill-considered opinions. The presentation of clear evidence in support of such prejudice is a prerequisite to a favourable determination on the issue under consideration. Court decisions cannot be based upon the unsupported hypotheses.” 73. I am accordingly persuaded to find that the petitioners are not entitled to the payment of the additional sum of Kshs. 340,000 sought as they have not established the claim on violation of the constitutional provisions cited. Articles 28 and 29 of the Constitution 74. Turning to the claim on violation of Articles 28 & 29 of the Constitution which provide for dignity and security of the person, I have already found, in this judgment, that the 2007/2008 PEV was a national tragedy that undoubtedly implicated these rights. I however note that the respondents’ liability for past criminality or private acts of violence was not pleaded or proved in a manner that would form a basis for compensatory liability in this petition. The humanitarian scheme was expressly ex-gratia. I have already found that no specific unlawful act or omission by the respondents that proximately caused the petitioners’ individual injuries was demonstrated beyond the assertion that security was not provided. 75. On Article 43 rights to housing/social security, I find that it is trite that the Constitution JUDGMENT – HCCHRPET NO. E001 OF 2020 envisions progressive PAGE 46 OF 52

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realisation within resource limits. In this regard, a court will not micromanage humanitarian policy or re-allocate budget lines in the absence of proof of illegality, arbitrariness or discrimination. On the evidence presented before this court, it is clear that the scheme’s categorical design was not shown to be arbitrary or mala fide. 76. On Article 47 of the Constitution on fair administrative action and Article 35 on access to information, I find that the Petitioners’ complaint has more force. I say so because the evidence presented shows that the affected persons were not furnished with a clear, accessible statement of the criteria used to place them in a particular category, or the basis for amounts and land allocation in comparable contexts. The respondents conceded reliance on vetting committees and internal criteria but did not disclose those criteria, or minutes/reports, in a way that would enable affected persons to understand, question or seek review. I find that the opacity in the entire process offends Article 47’s demands of transparency/reasonableness and implicates Article 35 when specific information is sought and not lawfully exempt. 77. In Dry Associates Ltd vs. Capital Markets Authority [2012] eKLR it was held that Article 47 of the Constitution demands procedural fairness, reasonableness and transparency in administrative action. 78. In Nairobi Law Monthly Company Limited vs. Kenya Electricity Generating Company & 2 others [2013] eKLR it was held that Article 35 is directly enforceable; JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 47 OF 52

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public bodies must disclose information where requested unless a lawful limitation applies. 79. I find that the Petitioners proved violation of Article 47 and Article 35 to the extent of failure to transparently communicate criteria and reasons for differential packages to integrated IDPs in Nyamira/Kisii. Remedies 80. In Dendy vs. University of Witwatersrand & Others (2006) 1 LRC 291 it was held that: “The primary object of constitutional relief is not compensatory but to vindicate the right and deter future infringement.” 81. It is trite that remedies must be appropriate and proportionate based on the facts of each case. In the instant case, the headline relief of Kshs. 400,000 per petitioner (less 60,000) and land allocation presupposes a legal entitlement to that uniform package, proof that similarly situated integrated IDPs elsewhere received that package; and judicial competence to substitute humanitarian policy with a blanket award. I have already found that those predicates were not met on this record. I have also found that the payments were ex-gratia and category-based. For these reasons, the court should be slow to convert a discretionary humanitarian scheme into a fixed compensatory tariff in the absence of proven discrimination or illegality. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 48 OF 52

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82. However, the established Articles 47 and 35 violations justify public-law transparency, relief including aimed a at directed vindication disclosure and and a structured reconsideration avenue for any petitioner who can, with particulars, demonstrate mis-categorisation. 83. I have already noted elsewhere in this judgment that the claim was filed in 2020, more than a decade after the PEV and after the IDPs register closed on 31 December 2008. This court is alive to the fact that constitutional claims are not time-barred per se, but courts also consider prejudice and the public interest in finality of cases. In Patron, Internally Displaced Committee vs. Devolution & Persons Cabinet Planning & Kisii Secretary, of National Steering Ministry of Government [2016] eKLR, it was held that: “A claim for compensation coming up… years after the fateful events cannot be free from infiltration by joy riders seeking to reap from the State…” 84. The principle that emerges from the above cited case is that courts frown upon retrospective monetary equalisation across thousands of claimants. Costs 85. Given the mixed outcome and the public-interest character of this case, I find that each party shall bear its own costs of the Petition. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 49 OF 52

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Disposition 86. Having regard to the findings and observations that I have made in this judgment, I make the following final orders: a) A declaration is hereby made that the Respondents violated Articles 47 and 35 of the Constitution by failing to transparently disclose and communicate the criteria, reasons and evidential basis used to categorise the petitioners as integrated IDPs and to determine the monetary/land assistance applicable to them, thereby denying them fair administrative action and access to information. b) Disclosure Order: The 1st and 2nd respondents shall, within ninety (90) days from the date of this judgment, furnish to the petitioners, through their advocates, and file the following reports in this court: i) The written criteria/policy and any guidelines used between 2008–2017 to classify IDPs into assistance categories; ii) The Nyamira and Kisii County vetting committee records (redacted only as permissible by law) showing the petitioners’ categorisation and payment approvals; iii) A comparative schedule (county-by-county) identifying which categories (returnees/settled on procured land/integrated) received the Kshs. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 50 OF 52

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200,000 and Kshs. 400,000 packages and the justification therefor. c) Structured Administrative Review: Within ninety (90) days after disclosure, the respondents shall reopen, for a period of sixty (60) days, a targeted administrative review window before the National Consultative Committee on IDPs (or its successor) to receive and determine, with reasoned decisions, any individual petition by a listed petitioner who, with particulars and documents, asserts mis-categorisation or omission. Outcomes shall be communicated in writing, and a consolidated report filed in court. Nothing in this order compels payment; it compels a lawful, transparent process. d) Damages: The prayer for equalisation to Kshs. 400,000 (less 60,000) and for blanket land allocation is declined. Considering the established Article 47/35 breach, I award nominal constitutional damages of Kshs. 15,000 per testifying lead petitioners (the 50 Petitioners who testified) to vindicate the right to fair administrative action and information. The award is exemplary of the breach proved on the record actually tested at the trial, without prejudice to any individual’s claim in the administrative review. JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 51 OF 52

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e) Either party is at liberty to apply on the question of compliance with Orders b)–c) above. f) Each party shall bear its own costs. 87. It is so ordered. Judgment dated, signed and delivered virtually at Nyamira via Microsoft Teams this 30th day of October 2025. W. A. OKWANY JUDGE JUDGMENT – HCCHRPET NO. E001 OF 2020 PAGE 52 OF 52

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