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Supreme CourtPartially AllowedPetition 26, 34 & 35 of 2019 (Consolidated)

Wamwere & 5 others v Attorney General

Supreme Court of Kenya
27 January 2023
Martha Karambu KoomeM. K. KoomePhilomena Mbete MwiluP. M. MwiluSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguWilliam OukoW. Ouko
12,263 words in judgment
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·~49 min to read original · ~4 min brief

The bottom line

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Kenya's Supreme Court rules human rights claims have no time limit, awarding Kshs 2.5M each to 1992 protest victims.

What this practically means

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Six people who were violently dispersed by police during a peaceful protest in 1992 won their case in the Supreme Court. The Court declared that there is no deadline for filing human rights claims under the Constitution. It also stated that courts can consider historical context when victims delay filing cases. The government was ordered to pay each victim Kshs 2.5 million for inhuman treatment.

Executive summary

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This consolidated appeal arose from the dismissal of three High Court petitions by victims of the 1992 'freedom corner' protest, where mothers of political prisoners and supporters were violently dispersed by police. The High Court and Court of Appeal had dismissed the claims, finding the delay of over 20 years unexplained and the evidence of torture insufficient. The Supreme Court allowed the appeal in part. It held that there is no limitation of time for human rights claims under the Constitution, but courts may consider whether delay is inordinate and requires explanation. The Court found that the appellants' explanation—lack of faith in the pre-2010 judiciary—was plausible in the context of Kenya's democratic transition and the nature of transitional justice claims. The Court took judicial notice of the notorious historical fact that the protest was violently disrupted. While the appellants failed to prove physical torture or the 1st appellant's property claim due to lack of evidence, the Court found that the violent disruption of their harmless protest had a psychological traumatic effect amounting to inhuman treatment under section 74(1) of the repealed Constitution. The Court set aside the judgments of the lower courts, declared the petitions were filed without inordinate delay, declared violation of the appellants' freedom from inhuman treatment, and awarded each appellant Kshs 2,500,000 in damages with costs to the appellants in all three courts.

Questions the Court framed

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

  1. 1.Whether there is limitation of time in filing claims for human rights violation.
  2. 2.Whether there was unexplained inordinate delay by the appellants in filing their petitions in the High Court.
  3. 3.Whether the appellants proved on a balance of probabilities that their fundamental rights and freedoms were violated.
  4. 4.If the answer to (iii) is in the affirmative, what is the appropriate remedy in the circumstances of the consolidated appeal?

Key legal issues

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01

Whether there is limitation of time for filing claims of human rights violations.

Holding

There is no limitation of time for filing claims of human rights violations under the Constitution; such claims are evaluated on a case-by-case basis.

Reasoning

The Supreme Court held that the Limitation of Actions Act does not apply to causes founded on violation of rights and freedoms. The court affirmed that there is no time limitation, but a court may consider whether there has been inordinate delay, and a petitioner must explain any delay to the satisfaction of the court. The court found that the appellants' explanation—lack of faith in the pre-2010 judiciary—was plausible given Kenya's history of repression and the transitional justice context.

p. 16
02

Whether the appellants proved violation of their freedom from torture and inhuman treatment on a balance of probabilities.

Holding

The appellants proved violation of their freedom from inhuman treatment under section 74(1) of the repealed Constitution, but not torture, due to the violent disruption of their peaceful protest.

Reasoning

The court took judicial notice of the notorious historical fact that police violently dispersed the freedom corner protest on March 3, 1992. The appellants' evidence that they were present was uncontroverted, as the Attorney General called no witnesses. While the court agreed with the lower courts that there was no evidence of physical torture or arrest records, it found that the violent disruption of the harmless protest had a psychological traumatic effect on the appellants, amounting to inhuman treatment in violation of section 74(1) of the repealed Constitution.

p. 27
03

Whether the 1st appellant proved violation of her right to property.

Holding

The 1st appellant failed to prove violation of her right to property due to an 'evidential vacuum'.

Reasoning

The court affirmed the lower courts' finding that the 1st appellant did not adduce any evidence of ownership of the alleged properties. She made only bare allegations without any documentary proof of title or occupation. The court reiterated that even where a respondent does not file evidence, the petitioner still bears the burden of proof on a balance of probabilities.

p. 5

Legal principles established

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  • No limitation period for constitutional rights claims; courts evaluate delay case by case.
  • In transitional justice, courts must be sensitive to reasons for delay and balance prejudice.
  • A petitioner must prove human rights violations on a balance of probabilities.
  • Courts may take judicial notice of notorious historical facts under the Evidence Act.
  • Psychological trauma from violent disruption of peaceful protest amounts to inhuman treatment.

Court orders

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  1. 1.The judgments of the Court of Appeal dated June 28, 2019 and August 6, 2019 in Civil Appeal Nos 188, 189 and 190 of 2017 are hereby set aside.
  2. 2.The judgments of the High Court dated April 15, 2018 in HC Petition Nos 196, 197 and 209 of 2013 are hereby set aside.
  3. 3.A declaration hereby do issue that the appellants’ petitions in the High Court were lodged without inordinate delay due to the historical context under which the violations claimed occurred.
  4. 4.A declaration hereby do issue that the appellants rights and freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya through the actions of its agents and/or servants (police officers and GSU officers).
  5. 5.The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal.
  6. 6.The Government of Kenya shall bear the costs in the High Court, Court of Appeal and this court.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal Nos 188, 189 and 190 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution and section 15(2) of the Supreme Court Act, 2011
Consolidated with
SC Petition No 26 of 2019, SC Petition No 34 of 2019, SC Petition No 35 of 2019

Relief refused

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Declaration that the 1st appellant’s right to property under article 40(1)(a) and (b) was violated

The 1st appellant did not adduce any evidence of ownership of the alleged properties.

p. 5

Exemplary damages

The court did not award exemplary damages; it awarded general damages for violation of freedom from inhuman treatment.

p. 27

Costs

The Government of Kenya shall bear the costs in the High Court, Court of Appeal and this 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.

We concur and hold that there is no limitation of time in matters relating to violation of rights under the Constitution which are evaluated and decided on a case by case basis.
p. 16 Limitation of time for human rights claims
courts ought to be particularly sensitive to the reasons adduced for the delay. At the same time, courts should balance the reasons for delay with the likely prejudice a respondent may face in defending the claim in line with the right to fair trial.
p. 17 Transitional justice and delay
we are persuaded that the whole incident had a psychological/traumatic effect on them. This in our view can be equated to inhuman treatment which was a violation section 74(1) of the repealed Constitution.
p. 27 Proof of inhuman treatment
The judgments of the Court of Appeal dated June 28, 2019 and August 6, 2019 in Civil Appeal Nos 188, 189 and 190 of 2017 are hereby set aside.
p. 28 Final orders - setting aside Court of Appeal judgments
The Government of Kenya shall pay damages assessed at Kshs 2,500,000.00/- to each of the appellants in this consolidated appeal.
p. 28 Final orders - damages awarded
The Government of Kenya shall bear the costs in the High Court, Court of Appeal and this court.
p. 28 Final orders - costs

Key timeline

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1992-03-03
Peaceful protest at Freedom Corner violently dispersed by police.
2018-04-15
High Court dismisses petitions citing delay and lack of evidence.
2019-06-28
Court of Appeal upholds High Court dismissal in part.
2019-08-06
Court of Appeal issues second judgment related to the appeals.
2023
Supreme Court allows appeal in part, awards Kshs 2.5M each to six appellants.

Practical implications

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For lawyers

No time bar for constitutional claims

When advising clients on historical human rights violations, note that the Limitation of Actions Act does not apply. However, you must explain any delay to the court's satisfaction. The burden of proof remains on the balance of probabilities, and courts may take judicial notice of notorious historical facts to support claims.

For businesses

Limited impact on business rights

This judgment primarily concerns state accountability for human rights violations against individuals. For businesses, it reinforces that constitutional rights claims have no time limit, but the burden of proof applies. If your business faces such claims, ensure you preserve evidence and respond to allegations promptly.

For individuals

Know your rights: no deadline for human rights claims

If you suffered a human rights violation by the government, you can file a claim even years later. You must explain why you delayed. Courts will consider historical context, like lack of faith in the judiciary. You still need evidence to prove your case on a balance of probabilities.

Frequently asked questions

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Is there a time limit for filing human rights cases in Kenya?+

No. The Supreme Court ruled that the Limitation of Actions Act does not apply to constitutional rights claims. Courts evaluate delay on a case-by-case basis, and you must explain any delay to the court's satisfaction.

What happened in the Jane Wanjiku Mwangi v Attorney General case?+

Six protesters from the 1992 Freedom Corner protest were violently dispersed by police. The Supreme Court ruled that the government violated their freedom from inhuman treatment and awarded each Kshs 2.5 million in damages.

Can I sue the Kenyan government for human rights violations from decades ago?+

Yes, but you must prove your case on a balance of probabilities and explain any delay. Courts will consider historical context, such as lack of faith in the pre-2010 judiciary, as a valid reason for delay.

What is the standard of proof for human rights claims in Kenya?+

The burden is on the petitioner to prove the violation on a balance of probabilities. Even if the government does not respond, you must provide evidence. The court can take judicial notice of notorious historical facts.

Later judgments citing this (18)

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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 & 5 others v Attorney General", Case Analysis (2023). Petition 26, 34 & 35 of 2019 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/3/eng@2023-01-27

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