Joel Benard Lekukuton, Joseph Kipkurui Rotich Yopsoi, Jason Leariong, James Lesiopa Longipo & William Leaduma Seketian v Attorney General [2017] KEHC 1930 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 397 OF 2015

BETWEEN

JOEL BENARD LEKUKUTON…………………….…….…1ST PETITIONER

JOSEPH KIPKURUI ROTICH YOPSOI…………….….…2ND PETITIONER

JASON LEARIONG……………………………………….3RD PETITIONER

JAMES LESIOPA LONGIPO …………………..………...4TH PETITIONER

WILLIAM LEADUMA SEKETIAN………………………..5TH PETITIONER

AND

THE ATTORNEY GENERAL………………………..………...RESPONDENT

JUDGMENT

Introduction

1. The Petitioners are all ex-servicemen. They served in the armed forces on diverse dates between 1975 and 1982. All men, they claim a violation of their rights by the State following a failed coup de tat in 1982. The claim was lodged some thirty years after the alleged violations took place.

2. The questions in the petition are firstly, whether the Petitioners’ claim is time-barred and, secondly, whether the Petitioners’ their rights were violated and thus transitioned to the new Constitution from the old.

3. The Respondent opposed the Petition and the Petitioners’ claim.

Basic background facts

4.  In August 1982 there was a mutiny and attempted coup de tat in Kenya by elements within the armed forces. The mutiny and coup de tat was however short-lived. It was repulsed and suppressed by forces loyal to the Government with several arrests being made and deaths being recorded of both civilians and members of the security forces. The Petitioners claim to have been entangled in the entire scene leading to not only their discharge from the forces but also their detention and imprisonment in certain cases.

Petitioners’ case and evidence

5. The Petitioners’ respective cases are relatively similar. Their cases which they also repeated during the evidentiary hearing may also be retrieved from the affidavits they each swore in support of the petition.

1st Petitioner

6. Joel Benard Lekuton’s evidence was that he served in the defunct Kenya Airforce as serviceman No. 022380 and more specifically as an aircraft technician.  He testified that at the material time he had been on his off-duty days until the 1 August 1982 when he returned to duty only to be ordered arm himself which he did. He further stated that he surrendered on the same day at about 6. 30pm and was immediately placed under custody. He was to spend the next few weeks in various prisons namely Meru, Nanyuki, Kamiti, Easleigh Airbase and finally Naivasha. He was later court martialed and sentenced to serve two years in jail. he lodged an unsuccessful appeal.

7. The 1st Petitioner claimed that he was tortured and humiliated upon his arrest but admitted that he was well treated in prison after being jailed. He stated that it is in prison where he also received treatment for the physical torture and beating that he had received.

8. The 1st Petitioner stated that he only filed the claim after the Truth Justice and Reconciliation Commission had released its report.

9. The 1st Petitioner contended that his rights under Articles 28, 29, 48, 49, 50 and 51 of the Constitution had been violated and he was entitled to appropriate relief.

The 2nd Petitioner

10. The 2nd Petitioner Joseph Kipkurui Rotich Yopsoi was serviceman No. 102085. He testified that he was an aircraft engineer trained in Israel and was based at the Eastleigh Airbase at the material time.

11. The 2nd Petitioner denied that he took part in the mutiny and attempted coup despite admitting that he was on duty on the material day and also stating that he had been urged to join the riotous servicemen by his colleagues. He testified how he had been instructed by one of the forces’ captains to stay put but then he decided to scale the fence and run away only to be arrested.

12. The 2nd Petitioner testified extensively how he was tortured and humiliated after his arrest. He described how he was stripped naked and guns pressed on his legs and nether regions. He then went on to describe how he was kept in a dark cell for four days and thereafter shuttled between waterlogged cells in Kamiti, Naivasha and Kahawa Barracks. He was later released after a period of three months without any charges being preferred against him. In prison, he stated, he was never accorded any medical treatment. The 2nd Petitioner lamented on his inability to get any job as he had lost everything including his academic certificates.

13. According to the 2nd Petitioner, he never filed the claim previously due to a simply repressive regime.

The 3rd Petitioner

14. Jason Leariong is the 3rd Petitioner. He served as serviceman No 024150 and was based at Embakasi Ground-Air Defense Unit.

15. The 3rd petitioner testified that he was off-duty when he heard of the abortive coup. He later surrendered himself and was arrested on 6 August 1982. He was thereafter to spend days in a waterlogged cell and in solitary confinement in Naivasha and Kamiti prisons. He stated that he was tortured during interrogation but was never hospitalized. He was ultimately court martialed and jailed for eight years which sentence was later reduced to three years following a review application he made.

16.  According to the 3rd petitioner, he did not lodge his claim earlier for fear of reprisals.

The 4th Petitioner

17. The 4th Petitioner James Lesiopa Longipo was recruited to the armed forces in 1978. He served as serviceman No 023262.

18. He denied taking any part in the abortive coup, stating that he stayed in his room within the barracks until he was arrested after being disarmed.

He testified that after his arrest he was taken to Kamiti and Naivasha prisons where he spent time in dark small cells in solitary confinement. He had to relieve himself in the said small cells and was hardly allowed outside. Later he was jailed for six months at the Shimo La Tewa Prison. He pleaded guilty after the torture. He was never hospitalized.

19. The 3rd petitioner testified that it took him nearly thirty three years as he was always being trailed and harassed by security forces. According to him the repressive regime never would have allowed him to make a claim.

The 5th Petitioner

20. The 5th Petitioner William Leaduma Seketian joined the armed forces in 1975.  In 1982 he was based at the Embakasi Camp.

21. He testified that on 1 August 1982 he was at his home in Dandora Nairobi when he heard about the mutiny. He went to the camp as per the standing orders and was then ordered to dress up and arm himself. He complied but was later on disarmed by the army. He was arrested and transported naked to Kamiti Prison and later on to Naivasha Prison. He described how he spent days of hunger in waterlogged cells and in solitary confinement as he was being interrogated. He stated he was extensively tortured both physically and psychologically. Later on he was jailed for twelve years after a court martial but on appeal the sentence was reduced to six.

22. According to the 5th Petitioner he sought reprieve after thirty three years because he believed it was then calm enough to be compensated.

The Respondents’ case

23. The Respondent’s case is straight forward and is not pegged on any direct evidence, the Respondent not having called any witness but relied on the replying affidavit of Major Nicholas Mutuku Mulinge.

24. The Respondent states that the Petitioners have not proven their case and are merely relying on allegations. Additionally, the Respondent asserts that the Petitioners’ claim is barred as there had been inordinate delay on the part of the Petitioners in filing the same. Thirty (30) years plus without any reason is a delay which cannot be excused, so states the Respondent. According to the Respondent the Petitioners’ case and treatment fell under the exceptions to s.86 of the retired Constitution and thus no liability can be fetched on the Respondent.

25. The Respondent further states that the Petition is based on generalities and contradictions and that the Petitioners have not tendered any evidence in the form of medical reports or evidence of torture to prove their case.

Arguments by the Parties

26. The Petitioners were represented by Mr. Osoro Juma who urged their case. Ms. Jennifer Gitiri represented the Respondent.

Petitioners’ submissions

27. The Petitioners submitted that their Constitutional rights had been grossly violated. Counsel submitted that the Petitioners had been unlawfully detained, had lost their liberty and beaten besides being treated inhumanely by being locked up in waterlogged and dark cells. Contrary to Sections 72, 73, 76 and 80 of the retired Constitution. Counsel further submitted that the Petitioners had been deprived of food and communication with their family members as well as the right of legal representation. Counsel argued that the Petitioners discharge was unlawful and after their dismissal from the forces the Petitioners were unable to secure any gainful employment as their certificates were all lost.

28. Counsel stated that there was enough evidence tendered to show that the Petitioners’ rights had been violated.

29. Counsel added that no Court Martial had been constituted as required by law and any sentences meted upon the Petitioners and served were all unlawful and unconstitutional.

30. Counsel also further submitted that the repressive regime could not have allowed the Petitioners to file their claim any earlier.

31. Counsel submitted that the Petitioners were entitled to lump-sum damages for breaches and violations of their rights and relied on the case of David Gitau Njau vAttorney General [2013]eKLRwhile urging the court to assess the damages at Kshs. 8,000,000/= each.

Respondent’s Submissions

32. Ms. Gitiri submitted that the Petitioners had failed to prove their claim to the required standard and that the claims were completely unsubstantiated. Counsel also pointed out that the claims by the Petitioners were time barred.

33. More specifically, the Respondents counsel attacked the Petitioners’ evidence as being unreliable and wanting while the claim was stated to be imprecise and purely general. Counsel relied on the case of Anarita Karimi Njeru vRepublic [1976-80] 1 KLR 1272for the proposition that a constitutional petition must be reasonably precise in terms of pleadings and facts in support of the claim.

34. The Respondent faulted the Petitioners for producing medical reports and records which were irrelevant. Relying on s.107 of the Evidence Act (Cap 80), the Respondent submitted that the Petitioners had failed to establish that they had been tortured or treated cruelly and inhumanely.

35. The Respondent further submitted that the Petitioners were guilty of laches having failed to move the court with the requisite speed following the alleged violations. Then relying on the case of Wellington Nzioka Kioko vAttorney General [2016]eKLR the Respondent submitted that it would be against public policy to allow parties to sleep on their rights and then still entertain late or stale claims.

Discussion and Determinations

36. In wait, for determination, are three issues. Firstly, is the claim competent? Secondly, are the claims by the Petitioners time-barred by statute or otherwise? Thirdly, were the Petitioners rights or any alleged rights were violated what is the appropriate remedy in the circumstances.

Competency of the Petition

37. The Respondent contends that the Petition, even without a consideration of its merits ought to be dismissed for not meeting the minimum competency threshold. It is stated that the Petition is not precise enough and does not reveal with the requisite degree the Articles of the Constitution violated as well as the manner of violation.

38. It is no doubt true that the principle of the law is that where a person alleges constitutional violations and infringements and brings a claim to court, the Constitutional violations must not only be pleaded with a reasonable degree of precision but must also be particularized in a precise manner. The aggrieved party must also enumerate the Articles of the Constitution granting the rights complained to have been violated and the manner in which the rights have been violated or threatened with violation: see the Court of Appeal decision in Trusted Society of Human Rights Alliance v The Attorney General & 2 others [2014] eKLR.

39. The precision required is however not absolute precision. Where the court can painlessly identify a Petitioner’s claim then determination is to be merit based. There should be liberal in the way of dispensing justice: see Peter M. Kariuki –v- Attorney General [2014] eKLR.

40. I have perused the Petition as drawn. It is discernible what the Petitioners. The Petitioners claim illegal detention. They claim torture. The Petitioners have identified Articles 28, 29, 48, 49, 43 and 50 of the Constitution as read together with Sections 70, 71, 72, 74 of the retired Constitution. The Petition also describes the manner of the alleged violations.

41. I do not find the Petition to offend the basic drafting principle as to precision.

Time barred claims?

42. The Respondent further contends that the claims by the Petitioners for violation of their Constitutional rights have been filed so late in time to be accepted as genuine claims.

43. The alleged violations took place in 1982-1983. That is over thirty years ago. The Petitioners offered no explicit explanation save to point out that the “atmosphere was not conducive enough” to file any claim during the regime of the second President of the Republic of Kenya. This could be clearly picked from all their testimonies as well as counsel’s submissions.

44. There is no time limit for the filing of claims alleging violations of any of the guaranteed rights and fundamental freedoms. The law, as I understand it, however is that a person who claims that his Constitutional rights or freedom has been violated must however move with the necessary alacrity and expedition to enforce or protect the same through the court process: see Attorney General of Uganda v Omar Awadh & 6 Others [EACJ] No. 2 of 2012. Where there is apparent delay then the court must be furnished with sufficient reason for the delay: see Masai Mara (Sopa) Ltd v Narok County Government [2016] eKLR.Where the delay is inordinate and no reason is advanced to explain the delay,  the court will shut out the claim. Thus is Joseph Migere Oloo v Attorney General HCCP No. 424 of 2013a delay of 29 years was held inexcusable. In Ochieng Kenneth K’Ogutu v Kenyatta University & 2 Others (Supra)a delay of 17 years without any reason advanced was also held inexcusable.

45. Ideally while no party alleging violation of constitutional rights ought to be locked out of litigation, a party to the litigation must also not be prejudiced by reason of the delay. Generally as well it is in the interest of the administration of justice that litigation is expeditiously brought and expeditiously disposed of. No party ought to be allowed to sleep on his rights with a resultant prejudice to the others when he ultimately wakes up.

46. In the instant case, the events and alleged violations now complained of took place thirty years ago. In an attempt to explain the delay the Petitioners advanced the argument that the atmosphere was not conducive enough until after the year 2013. The delay was blamed on the political climate obtaining between the years.

47. It is true the courts have recognized the fact that prospective and genuine claimants may not be able to fill claims if there prevails “a politically repressive climate”: see Ochieng Kenneth K’Ogutu v Kenyatta University & 2 others HCCP No. 306 of 2012.

48. In the instant case, the Petitioners have stated that the existence of a politically repressive regime led to the delay in filing the claim. They testified as much on oath. I have no reason to doubt the Petitioners testimony that a repressive regime was not conducive to the filing of a constitutional claim given that the origin of the claim was a failed coup seeking to overthrow the allegedly repressive regime. I hasten however to add that the allegedly repressive regime’s tenure came to a halt in 2002, yet it took the Petitioners another ten years to file suit. Did they need to wait that long again?

49. The Petition is to be noted was filed in the aftermath of the new Constitution adopted by the people of Kenya in 2010. It has been severally stated that Kenyans transited. The Constitutional dispensation was shoved for the better. The democracy widened. I have myself no doubt on that. In the process Kenyans as well as the State organs submitted to the concept of transitional justice.

50. InNjuguna Githiru v Attorney General [2016]eKLRthe concept of transitional justice was expounded upon by the court when the court stated as follows:

“[37]…the dictates of transitional Justice cannot be ignored. Transitional justice is a set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses, with Kenya being no exception. This Court in previous decisions has stated that these measures include criminal prosecutions, truth and justice commissions, reparations programs, and various kinds of institutional reforms. Having so said however, it is imperative for a Petitioner to demonstrate some justification for prolonged delays in instituting claims especially in light of the fact that the avenues and mechanisms for addressing such violations were already in existence after the change of the alleged oppressive regime of governance. I say so because as early as the year 2003, persons aggrieved by the acts of the Moi Regime approached the courts for redress pertaining to alleged violations of their constitutional rights and fundamental freedoms. These include Stanley Waweru Kariuki vs Attorney General, Petition 1376 of 2003;Gitari Cyrus Muraguri vs Attorney General, Miscellaneous Case No. 1185 of 2003 (OS); Harun Thungu Wakaba vs Attorney General, Nairobi, Miscellaneous Application 1411 of 2004;Rumba Kinuthia vs Attorney General; Nairobi HCCC 1408 of 2004, Mugo Theuri vs Attorney General, HC Misc. Civil Case No 565 of 2005; David Njuguna Wanyoike vs Attorney General, Petition No. 729 of 2006; Oduor Ong’wen and 20 Others vs Attorney General, Petition No. 777 of 2008; Charles Gachathi Mboko vs Attorney General, Civil Case No. 833 of 2009 (O.S.); James Omwega Achira vs Attorney General, Petition 242 of 2009; Mwangi Mathenge vs Attorney General, Petition 240 of 2009; and Koigi Wamwere vs Attorney General, Petition 737 of 2009among many others. The foregoing further indicates that the cases alleging violations by the oppressive regime have been filed from 2003 onwards and even before the promulgation of the Constitution of Kenya, 2010.

51. The court went on to state as follows:

Transitional justice cannot however be a matter ad infinitum or a process without end as the Petitioner seems to have argued.Whereas such a claim may not be extinguished, the need to explain inordinate delay is a necessary requirement even if there is in fact no limitation of time for filing constitutional Petitions as the authorities above have clearly shown. That is why in  Mombasa Civil Case No. 128 of 1962, Rawal vs Rawal [1990] KLR 275the Learned Judge stated thus:

“The effect of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after a long lapse of time.  It is not to extinguish claims.”

52. It is clear, and I am prepared to follow the principle, that the concept of transitional justice in special circumstances has a grip on the Kenyan jurisprudence. The need not to rush and dismiss suits on the basis of the doctrine of laches is there. The claimant is to be given the benefit of the doubt where the claimant may explain the delay and also where there is evidently no prejudice fetched on the Respondent by reason of evidence having been lost.

53. I am prepared to find and I so find and hold that the dictates of transitional justice would not allow the Petitioners’ claim pegged on the Constitution to be disallowed without venturing on the merits.

54. I also hold the view that the Respondents would not be prejudiced as most of the background facts are not in controversy. It is not a controversy that there was an attempted coup in August 1982. It is also not in controversy that the Petitioners were all service-men and that they were all dismissed following their arrest, detention and court martial appearance in some cases. The August 1982 was one of its kind in Kenya. The treatment meted out to both civilians and servicemen is generally well documented. It is for each individual to then zero-in his case and be specific, but claims arising from the August 1982 ought to be accepted on a case by case basis. In the instant case there was delay but I find that no prejudice would be occasioned to the Respondent in terms of evidence as the burden does not shift until the Petitioners make out a case for the violation of their rights.

55. I would consequently not disallow the Petition solely on the basis of limitation.

Violation of Constitutional rights

56. The burden of proving violation of a right or freedom enshrined in the Constitution rests on the person alleging the violation and is to be discharged on a balance of probabilities: see Matiba vs. Attorney General [1990] KLR 666.

57. The Petitioners’ claim was three-fold with regard to alleged violation of the Constitution. First, the Petitioners all claimed to have been humiliated and treated in an undignified manner. They then alleged that they had been illegally detained incommunicado for periods roughly between three and eight months.

58. With regard to torture, both the retired Constitution as well as the Constitution 2010 sought and seek to ensure the protection of physical integrity of the individual. Article 29(d) provides for the right not to be subjected to torture in any manner, whether physical or psychological. Section 74(1) of the retired Constitution was essentially to like effect. The United Nations Universal Declaration of Human Rights (UDHR) also provides under Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. The UDHR was adopted on 10th December 1948. Since, several statutes and international covenants and treaties have prohibited torture which is basically, an infliction of physical suffering or threat to inflict such suffering.

59. All the Petitioners claimed that they were arrested on or about 1st August 1982 and subjected to threats of infliction of pain. That whilst in custody they were subjected to physical pain as well as degrading conditions like being in prison cells filled with water and being held in solitary confinement. The Respondents retort was that all these were mere allegations and nothing more.

60. I would agree with the Respondent. There is not sufficient evidence for me to hold that the Petitioners or any of them was subject to torture through the infliction of pain at any time or that they were subjected to inhuman and degrading punishment. I am not satisfied that at the time of the Petitioners arrest they were subjected to such inhuman and tortuous treatment. The evidence was simply not convincing.

61. I am unable to find that the Petitioners right to freedom from torture was violated for lack of evidence.

62. The Petitioners also variously complained of having been detained and or held incommunicado before either being released without trial or being arraigned before the court martial.

63. The retired Constitution at Section 72 guaranteed each individual personal liberty. The Section provided as follows:

“(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases -

(a) in execution of the sentence or order of a court, whether established for Kenya or some other country, in respect of a criminal offence of which he has been convicted;

(b) in execution of the order of the High Court or the Court of Appeal punishing him for contempt of that court or of another court or tribunal;

(c) in execution of the order of a court made to secure the fulfillment of an obligation imposed on him by law;

(d) for the purpose of bringing him before a court in execution of the order of a court;

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law of Kenya;

(f) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare;

(g) for the purpose of preventing the spread of an infectious o f (g) for the purpose of preventing the spread of an infectious or contagious disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community;

(i) for the purpose of preventing the unlawful entry of that person into Kenya, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Kenya or for the purpose of restricting that person while he is being conveyed through Kenya in the course of his extradition or removal as a convicted prisoner from one country to another; or

(j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Kenya or prohibiting him from being within such an area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during a visit that he is permitted to make to a part of Kenya in which, in consequence of the order, his presence would otherwise be unlawful.

A person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

(3) A person who is arrested or detained -

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.

(4) Where a person is brought before a court in execution of the order of a court in any proceedings or upon suspicion of his having committed or being about to commit an offence, he shall not be thereafter further held in custody in connexion with those proceedings or that offence save upon the order of a court.

(5) If a person arrested or detained as mentioned in subsection (3)

(b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall, unless he is charged with an offence punishable by death, be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(6) A person who is unlawfully arrested or detained by another person shall be entitled to compensation therefor from that other person. ”

64. The 1st Petitioner testified that he was held in detention for a period of 4 months between 2nd  August 1982 and 6th December 1982 before being taken before a court martial where he was charged with mutiny and jailed for 2 years. The 1st Petitioner testified how he was kept in solitary confinement at times and in dark and dingy small wet cells. All the while he communicated with nobody.

65. The 2nd Petitioner was held in custody between 1st August 1982 and 4th March 1983. He spent time in various prisons while not allowed to contact any person. He was not arraigned before any court or the court martial.

66. The 3rd 4th  and 5th Petitioners were detained during the period between 6th August and 12th October 1982. They ultimately appeared before the court martial on 12th October and were jailed after being convicted of mutiny. They served varied sentences.

67. All the Petitioners testified on oath. I observed them as they testified. Their demeanor as they spoke of their respective detention and periods of detention did not let them down. They appeared helpless. They were however clear on their detention periods and without any exaggeration they easily described the hard times spent in remand as they awaited their respective fates. I have no reason to doubt their testimony. The Respondent did not particularly challenge the fact of the Petitioners’ lengthy detention but contested the alleged torture. I have found there is no evidence to hold that the Petitioners were tortured. There is evidence however to hold that the Petitioners were unlawfully detained for unnecessarily long periods. The period that lapsed between the Petitioners arrests and release or arraignment before the court martial as the case may be were unreasonable.

68. It is certainly clear that both under the retired Constitution and the current Constitution a person’s liberty cannot be taken away without sufficient reason. If a person is arrested upon reasonable suspicion of having committed a crime the constitutional provision is that he must be arraigned before the court as soon as practicable. The threshold is twenty-four hours. Anything to the contrary would be illegal. It was therefore unlawful and a clear violation of Constitutional provisions to hold the Petitioners for the extended periods. As was held in Albanus Mwasia Mutua –v- Republic Criminal Appeal No. 120 of 2004,the burden of proving that a person has been arrested and brought before a court as soon as is reasonably practicable rests upon the person who alleges that the Constitutional provisions have been coupled with. The Respondent however tendered no evidence to controvert the Petitioners testimonies.

69. I must oblige and return the finding that all the Petitioners were deprived of their liberty in a manner not contemplated by the Constitution.

70. The periods of the Petitioners’ detention were long and, in my view, unnecessary so given that some of the Petitioners were not arraigned before the court martial. It matters little that the Petitioners were servicemen; allegations against them ought to have been investigated and dealt with expeditiously. Additionally, the Petitioners were not being disciplined or under any disciplinary process of the Armed forces to take them out of the ambit of the constitutional provisions. Holding the Petitioners for periods of six months and above was certainly unnecessary. There was an unnecessary delay which naturally infringed on the Petitioners’ constitutional rights.

71. In the circumstances, I am satisfied that the Petitioners’ rights were violated in so far as they were detained for long periods without being arraigned before a court martial or a court.

Reliefs

72. The Petitioners would be entitled to some reliefs in the circumstances and for the extended and unlawful detentions.

73. An award of damages may not necessarily give back to the Petitioners their Constitutional rights and freedoms taken away and abused so many years ago. It will however serve some comfort. They will be vindicated. It is compensatory in one way or the other.

74. In arriving at a compensatory award, I take note of the fact that the Petitioners only proved that their right to or freedom of liberty was taken away. The Petitioners did not prove any other violation.

75. Considering the circumstances of the case and period of the unlawful detention which ranged between five months and eight months, I am of the view that an appropriate amount would be a global sum of Kshs. 2,500,000/= for each Petitioner.

76.  I consequently award the 1st, 2nd, 3rd, 4th and 5th Petitioners, Kshs. 2,500,000/= each to be paid by the Respondent. Interest will accrue from the date of judgment until full payment.

77. I am inclined to deny the Petitioners costs in the circumstances of this case. They were lax in bringing their claim. Each party will however bear its own costs of the Petition.

78. Judgment is accordingly entered against the Respondent.

Dated, signed and delivered at Nairobi this 14th day November, 2017

J.L.ONGUTO

JUDGE