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Court of AppealPartially AllowedCourt of Appeal at Nairobi (appeal against High Court petition judgment of 25th January 2017)

Wamwere & 2 others v Attorney General (Civil Appeal 102 of 2018) [2024] KECA 487 (KLR)

Court of Appeal of Kenya
9 May 2024
3,644 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Court of Appeal awarded three Wamwere family members Kshs.2.5 million each for 1992 police brutality, confirming old rights violations can still be sued on in Kenya.

What this practically means

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Executive summary

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This is a Court of Appeal decision delivered at Nairobi on 9th May 2024 by Musinga (P), Laibuta and Ngenye-Macharia, JJA, in a single judgment of the court. Three siblings - the Wamwere family members - appealed the dismissal by Lenaola, J. of their petition alleging that in 1992-1993, during the Freedom Corner demonstrations and hunger strike at Uhuru Park and All Saints' Cathedral, police and GSU officers beat them, arrested and forcibly removed them, in violation of their freedom from torture and inhuman treatment. The State filed only grounds of opposition and called no evidence. The High Court dismissed the petition, holding there is no limitation period for constitutional rights claims but that the appellants produced no tangible evidence of the violations. On appeal, the Court held that the Supreme Court's decision in Wamwere & 5 Others v Attorney General, arising from petitions by the same family on identical facts, had substantively determined the issues, and that under Article 163(7) all courts other than the Supreme Court are bound by it. Adopting the Supreme Court's reasoning, the Court held there is no limitation of time for constitutional rights claims (though delay must be explained), that the lack of faith in the pre-2010 Judiciary was a plausible explanation, and that the appellants' uncontroverted affidavit and oral evidence proved the violations on a balance of probabilities despite the absence of medical records. The Court reversed the trial court's findings, awarded each appellant Kshs.2,500,000/= in damages in line with the Supreme Court's assessment, and ordered the Attorney General to pay the costs of the appeal and the trial court.

Questions the Court framed

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

  1. 1.Whether the affidavit and oral evidence of brutal attack on the unarmed appellants by Kenya Police and GSU officers at Freedom Corner on 3rd March 1992 and at All Saints' Cathedral constituted torture or not
  2. 2.Whether the learned judge ought to have been guided by similar precedents which decided that there was torture and violation of human rights of the mothers of Freedom Corner supporters
  3. 3.Whether there was any constitutional or statutory limitation to the filing of petitions founded on human rights violations or fundamental rights
  4. 4.Whether the appellants were entitled to the five prayers in the petition, including damages

Key legal issues

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01

Limitation of time for constitutional petitions alleging violation of fundamental rights

Holding

There is no limitation of time for such claims, but inordinate delay must be explained; the trial judge was mischaracterised as having imposed a limitation when he had not

Reasoning

The Court corrected the appellants' misreading of the impugned judgment, showing that Lenaola, J. held no limitation applies but that delay requires justification. It then adopted the Supreme Court's holdings in Wamwere & 5 Others affirming that the Limitation of Actions Act does not apply to constitutional rights claims, while leaving courts free to require explanation of delay, and accepting lack of faith in the pre-2010 Judiciary as a plausible explanation.

p. 5
02

Whether the appellants proved torture and inhuman and degrading treatment

Holding

Yes, on a balance of probabilities; the appellants' affidavit evidence stood uncontroverted as the State called no witness

Reasoning

The Court followed the Supreme Court's treatment of materially identical evidence, noting that the burden of proof lay on the petitioners but that unchallenged testimony of presence and assault at Freedom Corner and All Saints' Cathedral discharged it. Absence of medical records did not weaken claims concerning events more than two decades old, and the State's failure to rebut the evidence was decisive.

p. 7
03

Appropriate remedy for the established violations

Holding

Damages of Kshs.2,500,000/= per appellant, adopting the Supreme Court's assessment in the parallel Wamwere appeals

Reasoning

The Court held it should not depart from the quantum fixed by the Supreme Court on identical facts and common history, both because that decision binds it and because comparability was the express purpose of the Supreme Court's remedial discretion. The award serves both to restore the appellants' dignity and publicly to recognise historical state wrongs.

p. 7

Legal principles established

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  • All courts other than the Supreme Court are bound by the decisions of the Supreme Court, so the Court of Appeal and High Court are bound by the Supreme Court's disposition of materially identical Freedom Corner claims
  • Where the Supreme Court has substantively determined the main issues in an appeal arising from identical facts, the Court of Appeal may follow that determination
  • There is no limitation of time for filing claims founded on violation of rights under the Constitution, though a petitioner must explain any inordinate delay
  • A petitioner's uncontroverted and unshaken affidavit evidence, even without medical records, may suffice to prove participation in a protest and violation of rights on a balance of probabilities

Court orders

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  1. 1.Appeal allowed
  2. 2.Trial court's findings that the appellants did not prove violation of their fundamental rights and freedoms set aside
  3. 3.Each appellant awarded damages of Kshs.2,500,000/= for violation of the right to freedom from torture and inhuman treatment
  4. 4.Respondent to bear costs of the appeal and the costs of the proceedings before the trial court

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal/right of appeal from the High Court in a constitutional (Bill of Rights) petition; the Court applied Article 163(7) of the Constitution as the basis for being bound by the Supreme Court's decision in Wamwere & 5 Others v Attorney General

Relief refused

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Damages higher than Kshs.2,500,000/= per appellant

The Court adopted the Supreme Court's assessment in Wamwere & 5 Others instead of awarding more

p. 8

Costs

The respondent shall bear the costs of this appeal as well as the costs of the proceedings before the trial court.

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.

Article 163(7) of the Constitution stipulates that " All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court."
p. 4Binding effect of Supreme Court decisions on lower courts
Consequently, we hereby allow the appeal and set aside the trial court's findings that the appellants did not prove violation of their fundamental rights and freedoms.
p. 7Disposition - reversal of trial court findings
We hereby award each appellant damages of Kshs.2,500,000/= for violation of their right to freedom from torture and inhuman treatment.
p. 8Final orders - damages
The respondent shall bear the costs of this appeal as well as the costs of the proceedings before the trial court.
p. 8Costs
In the circumstances, we are satisfied that, on a balance of probabilities, the appellants proved their case.
p. 7Standard and burden of proof

Issues in the judgment

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minor

The block quotation of the Supreme Court judgment contains duplicated paragraph numbering ('76' appears three times) and '78' is rendered as '76', suggesting transcription or OCR errors in the reproduced extract

minor

The memorandum of appeal as summarised refers to the alleged attack at 'freedom corner on 3rd March 1991', while the judgment's narrative consistently dates the Freedom Corner incident to 3rd March 1992

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, "Wamwere & 2 others v Attorney General (Civil Appeal 102 of 2018) [2024] KECA 487 (KLR)", Case Analysis (2024). Court of Appeal at Nairobi (appeal against High Court petition judgment of 25th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/487/eng@2024-05-09

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