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Court of AppealDismissedCivil Appeal No. 255 of 2012· [2016] KECA 442 (KLR)

Lt. Col. Peter Ngari Kagume & 5 others v The Attorney General

Court of Appeal of Kenya
17 June 2016
HOH. M. OkwenguGKG. B. M. KariukiFAF. Azangalala
3,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed former Kenya Airforce officers' constitutional claims because they waited 24 years and could not prove their rights were violated.

What this practically means

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Executive summary

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Seven former Kenya Airforce officers appealed against the High Court's dismissal of their constitutional petition seeking 38 declarations, including that their 1982 arrests, detentions, courts martial and dismissals following the 1982 coup attempt were unconstitutional, and payment of retirement dues ranging from Shs.21 million to Shs.99 million per appellant. Nyamu, J had dismissed the petition on two grounds: inordinate delay of 24 years in coming to court, and failure to offer concrete evidence of the alleged violations. The Court of Appeal, in a single judgment of the court, framed three issues: proof of constitutional violation, entitlement to relief, and laches. The court applied the Selle v. Associated Boat Co. principles governing first appeals and re-evaluated the evidence. It held that the appellants' affidavit allegations, denied by the respondent's replying affidavit, required corroboration by admissible documents or oral evidence testable on cross-examination; newspaper cuttings and documents whose authors were not called could not discharge the burden. It further held that as serving members of the Armed Forces the appellants were subject to the Armed Forces Act, which limited their Chapter V rights, and they alleged no breach of that Act. On laches, the court found the 24-year delay inordinate and unexplained from 2002 to 2006, endorsing the finding that the suit was an abuse of process. The court dismissed the appeal with costs to the respondent, affirming the judgment of the High Court.

Key legal issues

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01

Whether violations of constitutional rights were proved

Holding

The alleged violations were not proved: affidavit allegations were denied by replying affidavit and unsupported by admissible documents or oral evidence.

Reasoning

The appellants relied solely on their affidavits, with newspaper cuttings and documents whose authors were not called. The respondent denied the allegations through a detailed replying affidavit. The court held that affidavit evidence, though admissible, could not carry the day where controverted; the claimant had to adduce admissible documentary or oral evidence testable on cross-examination. The trial judge was therefore entitled to find the allegations unproved.

p. 5
02

Whether the claims were defeated by laches

Holding

The 24-year delay in filing suit, without plausible explanation, was inordinate and fatal to the claims.

Reasoning

The appellants filed suit in 2006 over events of 1982. Counsel's explanation - fear of the then-government - covered only up to 2002, leaving 2002-2006 unexplained. The court held the delay inordinate and found no fault in the trial judge's conclusion that the suit was an abuse of process. The delay independently doomed even appellants who might otherwise have been entitled to benefits.

p. 6
03

Effect of membership of a disciplined force on fundamental rights claims

Holding

As members of the Armed Forces, the appellants were subject to the Armed Forces Act which limited their Chapter V rights under the repealed Constitution, and they did not allege breach of that Act.

Reasoning

The court noted section 86(2)(b) of the Armed Forces Act limited the appellants' rights under sections 71, 73 and 74 of the repealed Constitution. The 1st and 2nd appellants pleaded guilty before courts martial under that Act; appellants 3 to 8 were dismissed from service while subject to it. Their complaint was that the Act itself was unconstitutional, not that its provisions were breached - and the Act had since been repealed.

p. 5

Legal principles established

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  • A party alleging constitutional violation who faces denial by affidavit must buttress the allegation with admissible documents or oral testimony subject to cross-examination; affidavit denials standing untested leave the court without a basis to prefer one version.
  • On a first appeal, the Court of Appeal is duty-bound to re-examine and re-evaluate the evidence afresh, though making allowance for not having seen or heard the witnesses.
  • The burden of proving a claim lies on the party alleging; where allegations are met with denial and no probative evidence is adduced, the claim fails.

Court orders

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  1. 1.Dismissal of the appeal with costs to the respondent
On appeal from
High Court of Kenya, Nairobi
H.C. Misc Application No. 128 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and appellate jurisdiction over the High Court (not stated with precision in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lt. Col. Peter Ngari Kagume & 5 others v The Attorney General", Case Analysis (2016). Civil Appeal No. 255 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/442/eng@2016-06-17

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