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Court of AppealDismissedCivil Appeal No. 268 of 2016

Wellington Nzioka Kioko v Attorney General

Court of Appeal
19 January 2018
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
2,312 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a former serviceman's rights claim because he waited 30 years without a good reason and had no evidence.

What this practically means

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Executive summary

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The appellant, a former Kenya Air Force serviceman dismissed after the attempted coup of 1st August 1982, petitioned the High Court in 2013 seeking declarations that his rights were violated during an 8-month detention, damages, and payment of withheld salary, emoluments and pension. Mumbi Ngugi, J. dismissed the petition, finding inordinate unexplained delay and failure to establish the violations. On appeal, the Court of Appeal (Visram, Karanja & Koome, JJ.A) framed two issues: whether the judge erred on delay, and whether the evidence proved the claim. Applying the first appellate duty under Rule 29(1)(a) of the Court of Appeal Rules and Kenya Ports Authority v Kuston, the court re-evaluated the evidence. It endorsed the principle that although constitutional petitions carry no limitation period, delay must not be inordinate and must be plausibly explained, adopting Majaja J's reasoning in James Kanyita Nderitu v A.G. Poverty and orphanhood were held not plausible explanations, as the appellant could have applied to sue as a pauper. On the merits, the court found a paucity of evidence: no records corroborated the arrest or torture, and the jaw swelling arose a year after release and was not attributable to the respondent. It further held that the employment-related claims belonged to the Employment and Labour Relations Court under Articles 162(2) and 165(5). The appeal was dismissed with no order as to costs, affirming the High Court judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in finding that the petition was filed after inordinate delay with no plausible explanation
  2. 2.Whether the evidence on record was sufficient to prove the appellant's claim of violation of constitutional rights

Key legal issues

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01

Inordinate delay in lodging constitutional petitions

Holding

A 30-year delay with no plausible explanation justifies dismissal of a constitutional petition; poverty and lack of parents are not plausible reasons.

Reasoning

The court reasoned from the logic of limitation of actions: claims must be brought while evidence and witnesses are available and memories intact. Delay prejudices the State and the public. There is a rebuttable presumption that a person who does not seek redress promptly has not suffered loss. The appellant could have applied to sue as a pauper but did not.

p. 3
02

Sufficiency of evidence of arrest, detention and torture

Holding

The appellant's word alone, without records or corroboration, was insufficient to prove the alleged violations; the jaw swelling arose a year after release and was not attributable to the respondent.

Reasoning

Other than the appellant's testimony there was no record or other evidence of arrest or torture. The swelling developed a year after release and could have been occasioned anywhere; no proof linked it to the respondent or its agents. The claim was therefore unproved on the evidence.

p. 4
03

Jurisdiction over employment-related claims dressed as constitutional claims

Holding

Claims for withheld salary, emoluments, terminal benefits and pension cannot be entertained as constitutional claims but belong to the Employment and Labour Relations Court.

Reasoning

The court noted the appellant had claimed withheld salary, emoluments, terminal benefits and pension under the guise of a constitutional claim. Relying on Articles 162(2) and 165(5) of the Constitution, such employment disputes fall within the exclusive jurisdiction of the Employment and Labour Relations Court.

p. 4

Legal principles established

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  • On a first appeal, the Court of Appeal must re-evaluate, re-assess and re-analyze the evidence before the trial court and draw its own conclusions.
  • Although there is no limitation period for constitutional petitions, inordinate and unexplained delay justifies dismissal of a claim.
  • Claims for withheld salary, emoluments, terminal benefits and pension by former servicemen fall within the exclusive jurisdiction of the Employment and Labour Relations Court.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
WK
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court at Nairobi
Petition No. 517 of 2013
Jurisdiction invoked
First appeal under Rule 29(1)(a) of the Court of Appeal Rules

Relief refused

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Setting aside the High Court judgment and allowing the petition with damages of Ksh. 10,000,000

No plausible explanation for 30-year delay and paucity of evidence proving the alleged violations

p. 4

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find this appeal lacking in merit and consequently dismiss it with no order as to costs.
p. 4Final orders - dismissal of appeal
whereas there is no time limitation in respect of constitutional petitions, the delay must not be inordinate and there must be plausible explanation for the delay
p. 3Delay in constitutional petitions
That was a claim that could only be entertained in the Employment and Labour Relations Court pursuant to Articles 162(2), and 165 (5) of the Constitution.
p. 4Jurisdiction over employment claims
On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses
p. 3Duty of first appellate court

Issues in the judgment

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minor

Inconsistent detention locations between petition and affidavit

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Wellington Nzioka Kioko v Attorney General", Case Analysis (2018). Civil Appeal No. 268 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/858/eng@2018-01-19

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