Mujumbe (Suing as Personal Representatives of the Estate of Julius Mungania M’mura - Deceased) & 5 others v Commissioner of Prisons & another [2023] KEHC 25225 (KLR)

Mujumbe (Suing as Personal Representatives of the Estate of Julius Mungania M’mura - Deceased) & 5 others v Commissioner of Prisons & another (Civil Case 490 of 2012) [2023] KEHC 25225 (KLR) (Civ) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25225 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 490 of 2012

JN Mulwa, J

November 9, 2023

Between

William Mujumbe (Suing as Personal Representatives of the Estate of Julius Mungania M’mura - Deceased)

1st Plaintiff

Agnes Njeri Ndugo (Suing as Personal Representatives of the Estate of Joseph Kamande Mwangi alias James Irungu Ndugo - Deceased)

2nd Plaintiff

Loyala Monjo (Suing as Personal Representatives of the Estate of Peter Lomukuyu Lomungunyo alias Peter Loyala Lomungunyu - Deceased)

3rd Plaintiff

Moses Emoit Kolem (Suing as Personal Representatives of the Estate of Peter Koring - Deceased)

4th Plaintiff

Emashe Amojong (Suing as Personal Representative of the Estate of Peter Ngurushane Emashe - Deceased)

5th Plaintiff

Daniel Njuguna Njoroge (Suing as Personal Representatives of the Estate of John Nyoro Njuguna - Deceased)

6th Plaintiff

and

The Commissioner of Prisons

1st Defendant

The Attorney General

2nd Defendant

The State’s failure to provide a satisfactory explanation for the deaths of the deceased persons in custody amounted to a violation of its duty of care.

The plaintiffs sued the State, alleging that five prisoners were brutally and fatally beaten by prison warders while in lawful custody at G.K. Prison Nyeri in September 2000. They contended that two official inquiries confirmed the killings were intentional and not an escape attempt, as the State claimed. The State failed to justify the deaths and did not provide any eyewitnesses. The court held that the State had a heightened duty of care to protect the lives of individuals in custody. It found that the prisoners were subjected to cruel, inhuman treatment and the State had not fulfilled its obligation to explain or investigate the deaths adequately. The court ruled that the plaintiffs proved their case on a balance of probabilities and awarded Kshs. 3 million to each plaintiff as general damages. The State was held 100% liable, jointly and severally, with no award for special damages.

Reported by John Ribia

Constitutional Law– fundamental rights and freedoms – right to life – right not to be subjected to cruel, inhuman, and degrading treatment – where prison wardens tortured and killed prisoners in their custody - whether the State bore the burden of proving that the deaths of persons in custody were lawful - whether the State’s failure to provide a satisfactory explanation for the deaths of the deceased persons in custody amounted to a violation of its duty of care - whether the deceaseds’ were subjected to cruel, inhuman, and degrading treatment by prison warders, leading to their deaths - whether the State fulfilled its procedural obligation to conduct an effective investigation into the deaths of the deceased persons in custody - whether the brutal treatment and subsequent deaths of the deceased persons warranted a general award of damages to vindicate their rights - Constitution of Kenya (repealed) sections 71, and 84;  Evidence Act (cap 80) section 112; Prisons Act (cap 90),section 12.

Brief facts The plaintiffs’ case was that on or about the night of September 4 and 5 2000 while the deceased persons were lawfully being held at G.K Prison Nyeri, a squad of prison warders maliciously, recklessly, negligently, unlawfully, and in breach of their duty under the Prisons Act, and without any provocation or justification whatsoever brutally and fatally attacked the deceased persons and bludgeoned them to death.They contended reports of the two inquiries initiated by the defendants after the brutal killings of the deceased and produced in evidence concluded that the deceased persons were intentionally killed by the prison warders in whose care and custody they were entrusted. On the other hand, the defendants stated that the said prisoners were planning to escape, something that was disputed by the two report being the inquest and the commission.The plaintiffs sought general damages taking into account that the deceased were brutally killed at the ages 21 and 32 years, were married and had children and parents who were left behind, save for one who was single, but had his parents as dependents. They proposed global awards of Kshs. 4,500,000/- to each of the plaintiffs for lost years/loss of dependency (violation of the right to life) and freedom from torture of each of the deceased persons.

Issues

Whether the State bore the burden of proving that the deaths of persons in custody were lawful.

Whether the State’s failure to provide a satisfactory explanation for the deaths of the deceased persons in custody amounted to a violation of its duty of care.

Whether the deceased persons were subjected to cruel, inhuman, and degrading treatment by prison warders, leading to their deaths.

Whether the State fulfilled its procedural obligation to conduct an effective investigation into the deaths of the deceased persons in custody.

Whether the brutal treatment and subsequent deaths of the deceased persons warranted a general award of damages to vindicate their rights.

Held

The State had the responsibility to protect life of its citizens including prisoners detained in its institutions. That responsibility was elevated when a suspect was arrested and placed in police custody. At the time of the deceased persons arrests and deaths, the former Constitutionwas applicable.

At the time of the deceased persons arrests and deaths, the repealed Constitution was applicable. Section 71 thereof provided for the right to life.

The obligation on the State to provide a satisfactory explanation of the deaths of the deceased persons in custody was further buttressed by section 112 of the Evidence Act that stated that in any civil proceedings, when any fact was especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact was upon him. The burden of proof that the deaths were lawful and not the result of unlawful actions lay squarely on the State.

When a person died in custody, it was only the State that had all the information necessary to expose the cause of death. The deceased were brutally and fatally attacked by the prison officers and that the defendants did not avail any eye witness to support their defence which remained to be only allegations. Their witness did not justify the killings of the deceased. Both the inquest and the Mutungi Report, made specific findings on the breach of duty of care stating that there was no escape by the prisoners and that it was a theory that was fabricated by the prison authorities as a cover up to try and hide what really happened and the deceased did not meet their untimely death by way of accident or misadventure but their deaths were the results of culpable killing of the prison warders whose identities were known by the department of prisons.

The deceased five persons and the survivor were subjected to cruel, inhuman mistreatment beyond human understanding and that indeed they were brutally and fatally attacked by the prison warders which resulted to their unfortunate and untimely deaths. There was also a procedural obligation to conduct an effective official investigation into any death resulting from the use of force and any death resulting from the State’s failure to protect the right to life. The purpose of such investigation was to ensure that domestic laws protecting the right to life were applied, and also to hold state officials accountable, to bring all the facts to public notice, to rectify any dangerous practices and to give relatives of the deceased and the public the reassurance that any lessons learned from the death might save the lives of others.

The plaintiffs had proved their case against the defendants jointly and severally, to the required standard, upon a balance of probabilities and therefore, wholly liable to compensate the plaintiffs in damages.

The deceased persons were subjected to unwarranted reckless painful and brutal beatings resulting in their untimely deaths. A global award would be most appropriate in the circumstances. While the sum awarded would never fill the gap the deceased persons left, it could only serve to vindicate their rights.

Petition partly allowed.

Orders

The defendants were 100% liable, jointly and severally.

The court awarded a global award to each of the plaintiffs at Kshs. 3 million.

Special damages were not proved; nil award

Interest at court rates from date of the instant judgment

Costs were to be borne by the defendants.

Citations Cases Arnacherry Limited v Attorney General (Petition 248 of 2013) — Explained

Gichohi, Gerald Juma & 9 others v Attorney General ([2015] eKLR) — Explained

Harun Thungu Wakaba v Attorney General (Miscellaneous Application 1411of 2004; [2010] KEHC 2226 (KLR)) — Explained

Hassan, Zeitun Juma Petitioning On Behalf Of The Estate Of Abdul Ramadhan Biringe (Deceased) v Attorney General & 4 others (Petition 57 of 2011; [2014] KEHC 5367 (KLR)) — Mentioned

Ndung'u, George Kamau (suing as the Legal Representative of estate of the late Solomon Mwaura & another (suing as the legal representative of the state of late Kamau John Kang'ethe) v Attorney General & 5 others (Civil Appeal 84 of 2008; [2016] KEHC 1488 (KLR)) — Mentioned

Njahira, Ann Wairimu v Nairobi City County Government & 4 others (Petition 575 of 2015; [2017] KEHC 2080 (KLR)) — Mentioned

Njoroge, Jennifer Muthoni & 10 others v Attorney General (Petition 340,341,342,343,344,345,346,347,348,349 & 350 of 2009; [2012] KEHC 2705 (KLR)) — Mentioned

Weheire, Wachira v Attorney General (Miscellaneous Civil Case 1184 of 2003; [2010] eKLR) — Mentioned

Nalibati Behera alias Lalit Behera v State of Orissa ([1993] AIR 1960, 1993 SCR (2) 581) — Explained

Osman v United Kingdom ([2000] 29 EHRR 245) — Mentioned

Statutes Constitution of Kenya (repealed) — section 71, 84 — Interpreted

Constitution of Kenya, 2010 — In general — Interpreted

Evidence Act (cap 80) — section 112 — Interpreted

Fatal Accidents Act (cap 32) — In general — Cited

Law Reform Act (cap 26) — In general — Cited

Prisons Act (cap 90) — section 12 — Interpreted

AdvocatesNone mentioned

Judgment

1. By a Plaint dated 01/10/2003, the Plaintiffs sued the Defendants for damages arising from alleged malice, negligence and unlawful disregard of official statutory duties by the Defendants and sought Judgment for:a.Special damages for Kshs. 4,400,000/=b.General damages under the Law Reform Act (Cap 26) and the Fatal Accidents Act (Cap 32)c.Punitive /aggravated/Exemplary Damagesd.Costs of the Suite.Interest on (a) to (d) above from the date of filing suit.

2. The Plaintiffs’ case is that on or about the night of 4th/5th September 2000 while the deceased persons were lawfully being held at G.K Prison Nyeri a squad of prison warders maliciously, recklessly, negligently, unlawfully, and in breach of their duty under the Prisons Act, and without any provocation or justification whatsoever brutally and fatally attacked the deceased persons and bludgeoned them to death. They particularised the Defendants negligence as follows:i.Unlawfully and without provocation whatsoever brutally attacking the deceased who were unarmed and defenceless prisonersii.Failing to ensure the safety, health and well-being of the deceased prisonersiii.Maliciously and deliberately failing to accord medical attention to the deceased prisonersiv.Maliciously and deliberately failing to observe the Prisons Act and the Standing Orders thereunder regarding the deceased prisonersv.Deliberately and maliciously concealing the true circumstances that led to the killing of the deceased

3. The Plaintiffs averred that as a result of the said brutal and fatal attack by the prison warders the deceased sustained fatal injuries from which they died and at the time of the said killings the deceased prisoners were young men in their twenties and thirties in good, robust health and had chances of appeal against the death sentences with real and good chances of success.

4. In their Statement of Defence dated 22/01/2004, the Defendants stated that the deceased’s injuries, if any were incurred in the process of and or in furtherance of a common intention to forcefully and unlawfully escape from lawful custody and that they used reasonable force and restraint to prevent and/or deter the deceased from the execution of and/or furtherance of their forceful and unlawful attempt to escape from prison. The Defendants further stated that they acted within the statutory duty conferred upon them under the Prisons Act, Cap 90.

The Plaintiffs Case 5. PW1 William Mujumbe the 1st Plaintiff stated that sometime in 2000, he was informed by their area chief that his brother Julius Mungania M'muraa had been killed by prison officials. He promptly travelled to Nyeri to see the body at the mortuary. He added that his brother was a farmer before being imprisoned, was 24 years old and married with three children. He admitted during cross-examination that the last time he saw his brother alive was in 2000, the year he was convicted and sentenced to death.

6. PW2 Moses Emoit the 4th Plaintiff stated that his older brother, Peter Koring was 32 years old when he was killed at the prison and that before then he was employed as a security guard at Mutara ADC Ranch prior to his 1998 arrest. He added that he had been married to two women and had five children by them. In his testimony, he said that he saw his brother's body in the mortuary, recognized him from the pictures submitted as exhibit No. 4 in court, and showed the court's decision granting him permission to bring this lawsuit beyond the deadline.

7. PW3 Daniel Njuguna Njoroge the 6th Plaintiff stated that shortly before his arrest in 1999, his late son John Nyoro Njuguna worked as a charcoal dealer in Subukia. According to his statement, his son was single and 22 years old when he was killed. He testified in court that the deceased used to give him and the family money from his charcoal business. Additionally, he stated to have seen his son's body in a Nyeri mortuary, recognized him from pictures submitted as exhibit No. 8, and requested financial compensation from the court for the loss of his son.

8. PW4 Agnes Njeri Ndugo the 2nd Plaintiff testified stated she was the mother of the deceased James Irungu Ndungu who was 27 years old, and that he c was a casual worker before his detention, and that she was entirely dependent on him before to his arrest and imprisonment, and that she visited him several times at the prison and found him in good health. She accused the prison warders of causing her son's death and denying her the chance to see him ever again, and she urged the court to compensate her for his death.

9. PW5 Emashe Amajong the 5th Plaintiff testified that Peter Ngurushane Emashe, the deceased, was his son and that, before to his imprisonment, he worked as a herdsman. He was also 27 years old and single when he passed away. According to his testimony, he relied on him for financial help prior to his incarceration, adding that he was upset that he had to pass away at such a young age and held warders responsible for his demise.

10. PW6 Bernard Kimathi M’Mwirichi stated that he was the sole survivor of the tragic incident of 4th September 2000. He informed the Court that in September 2000 he was a convict at King’ongo having been sentenced to death for the offence of robbery with violence and that he was jointly charged with the 1st deceased Julius M’Muraa who was his 2nd accused. It was his evidence that on the fateful day, together with the 6 deceased persons, they were led to the prison main gate where they found their fellow inmate Godfrey Ipomai and prison warders and were told to squat for about an hour which they did, then about 10 prison warders wielding batons and axes approached them, pounced on them hitting them indiscriminately with the weapons as the they - the prisoners- started screaming and begging the prison warders to stop beating and killing them but their pleas fell on deaf ears. He testified that at this point he planned to escape to save his life but was later arrested the same night and returned back to King’ongo Prison. He stated that he later was charged with the offence of escaping from lawful custody. He further told the court that upon appeal, he was acquitted of the robbery with violence charge and released from prison sometime 2003.

11. Additionally, this witness testified that he believed that the prison warders attacked them maliciously, negligently, unlawfully, with the intention of killing all of them for no reasons. On cross examination PW6 refuted the narrative that they were trying to escape from lawful custody.

Defence Case 12. DW1, Inspector Paul Ayub from the Prison Headquarters produced committal warrants for the 6 deceased persons and on cross examination, he confirmed that indeed all the deceased persons had rights of appeal and also that from his records, the 5th deceased herein Peter Ngurushane had not been sentenced to death but to a term of 13 years imprisonment.

The Plaintiffs Submissions 13. The Plaintiffs submitted that the reports from the two inquiries initiated by the 2nd Defendant after the brutal killings of the deceased and produced in evidence concluded that the deceased persons were intentionally killed by the prison warders in whose care and custody they were entrusted. The Plaintiffs further submitted that investigations into the Death of six prisoners at the Nyeri G.K Prison –King’ongo prepared by the Standing Committee on Human Rights presented to the President made specific conclusions as follows:“There was no plan by the inmates to escape as alleged by the prison authorities …..4. The scheme was to procure the escape of Godfrey Ipomai and the subsequent killings were a cover up and destruction of evidence. The statements by the officers /warders were rehearsed and exhibits stage managed and tailored to suit the escape theory …….8. The seven remaining inmates were then ordered to strip for a body search after which they were set upon by officers/warders with the intention to kill them. With the exception of Bernard Kimathi Mwirichia who managed to escape they were killed in a most brutal murder.”These findings were replicated in the Pro. Mutungis of enquiry into the said killing.

14. It is the Plaintiff’s submissions that the court inquest also made specific findings on the breach of duty of care by the prison warders stating that there was no planned escape by the prisoners and that it was a theory that was fabricated by the prison authorities as a cover up to try and hide what really happened and the deceased did not meet their untimely death by way of accident or misadventure, but their deaths were the result of culpable killing of the prison warders whose identities were known by the Department of prisons.

15. Further the Plaintiffs submitted that other than the inquest, the High Court and Court of Appeal relied on the evidence of the survivor of that fateful night, PW6 Bernard Kimathi M’Mwirichia who narrated how the prison warders turned into a murderous gang that bludgeoned his six deceased colleagues to death for the sole purpose of facilitating the escape of one of the prisoners, one Godfrey Ipomai.

16. On damages, the Plaintiffs by their Advocates submissions sought general damages taking into account that the deceased were brutally killed at the ages 21 and 32 years, were married and had children and parents who were left behind, save for one who was single, but had his parents as dependants. They proposed global awards of Kshs. 4,500,000/- to each of the Plaintiffs for lost years/loss of dependency (violation of the right to life) and freedom from torture of each of the deceased persons. In support, reliance was placed on the cases; Ann Wairimu Njahira v Nairobi City County Government & 4 others (2017) eKLR, Zeitun Juma Hassan v Attorney General & 4 Others (2014) eKLR, Kamau Ndungu (Suing as the Legal Representative of Estate of the late Solomon Mwaura & another v Attorney General & 5 Others (2016) eKLR.

The Defendants Submissions 17. On the other hand, the Defendants submitted that the use of force by prison warders is not entirely prohibited as it is only restricted, under section 12 of the Prisons Act Cap 90 which states that prison officers are allowed to use force against any inmate as is reasonably necessary in order to make them obey lawful orders when they refuse to obey, and to maintain discipline and order in prison. The Defendants also submitted that the Prison officers are also allowed to use their weapons in various circumstances which as when the inmates are escaping or attempting to escape, engaged with other persons in breaking out or attempting to do, and engaged with others in riotous behaviour in prison and desist when called upon. It was their submission that the prisoners were escaping from prison, necessitating the prison officers to use force in order to contain them but unfortunately they succumbed to the injuries sustained.

Analysis and Determination 18. Having considered the pleadings and evidence adduced by the parties as well as their respective submissions, this court flags the following issues for determination:a.Whether the Defendants owed a duty of care to the prisoners while they were in their custody, and if so, whether the Defendants are liable for the use of excessive force that led to the prisoners’ injuries that resulted in the subsequent deaths.b.Whether the Plaintiffs are entitled to damages as sought in the Plaint.

19. The State has the responsibility to protect life of its citizens including prisoners detained in its institutions. That responsibility is elevated when a suspect is arrested and placed in police custody. At the time of the deceaseds’ arrests and deaths, the former Constitution of Kenya was applicable. Section 71 thereof provided as follows;71. (1)No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.(2)Without prejudice to any liability for contravention of any other law with respect to the use of force in those cases hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use of force to such an extent as is reasonably justifiable in the circumstances of the case-(a)for the defence of any person from violence or for the defence of property;(b)in order to effect a lawful arrest or prevent the escape of a person lawfully detained;(c)for the purpose of suppressing a riot, insurrection or mutiny; or(d)in order to prevent the commission by that person of a criminal offence, or if he dies as result of a lawful act of war.

20. In the instant case, did the State violate by, its agents, the deceased persons’ rights to life? The obligation on the State to provide a satisfactory explanation of the deaths of the deceaseds’ in custody is further buttressed by section 112 of the Evidence Act that states that,“In any civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.” The burden of proof that the deaths was lawful and not the result of unlawful actions lies squarely on the State. It is evident that the reports of the two inquiries initiated by the Defendants after the brutal killings of the deceased and produced in evidence concluded that the deceased persons were intentionally killed by the prison warders in whose care and custody they were entrusted. On the other hand, the Defendants stated that the said prisoners were planning to escape, something that was disputed by the two report being the inquest and the commission.

21. PW6 Bernard Kimathi, who was the sole survivor of the tragic incident was a convict at the said GK prison having been sentenced to death for robbery with violence stated that he had been charged with the 1st deceased Julius M’Muraa who was his co-accused. The witness stated that he was part of the six prisoners who had been beaten to death but was able to escape.PW6 explained to the court how his fellow mates were beaten to death.

22. The right to life is absolute and can only be legally taken through due process of law. In Nalibati Behera alias Lalit Behera v State of Orissa [1993] AIR 1960, 1993 SCR (2) 581, Dr Anand J., of the Supreme Court of India, expressed the obligation of the State to protect the right to life particularly for those in police custody as follows;“It is axiomatic that convicts, prisoners or under-trials are not denied their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law.”

23. When a person dies in custody, it is only the State that has all the information necessary to expose the cause of death. What is clear from the evidence available is that the deceased were brutally and fatally attacked by the Prison officers and that the Defendants did not avail any eye witness to support their defence which remains to be only allegations as their witness DW1 did not justify the killings of the deceased. Both the inquest and the Mutungi Report, made specific findings on the breach of duty of care stating that there was no escape by the prisoners and that it was a theory that was fabricated by the prison authorities as a cover up to try and hide what really happened and the deceased did not meet their untimely death by way of accident or misadventure but their deaths were the results of culpable killing of the prison warders whose identities were known by the Department of prisons.

24. Upon the above analysis, I find and hold that the deceased five persons and the survivor were subjected to cruel, inhuman mistreatment beyond human understanding and that indeed they were brutally and fatally attacked by the prison warders which resulted to their unfortunate and untimely deaths, see Osman v United Kingdom [2000] 29 EHRR 245). There is also a procedural obligation to conduct an effective official investigation into any death resulting from the use of force and any death resulting from the State’s failure to protect the right to life. The purpose of such investigation is to ensure that domestic laws protecting the right to life are applied, and also to hold state officials accountable, to bring all the facts to public notice, to rectify any dangerous practices and to give relatives of the deceased and the public the reassurance that any lessons learned from the death might save the lives of others.For the foregoing, the court finds and holds that the Plaintiffs have proved their case against the defendants jointly and severally, to the required standard, upon a balance of probabilities and therefore, wholly liable to compensate the plaintiffs in damages.

Damages 25. The Plaintiffs’ plea to the court is to award damages that would compensate the deceaseds estates and dependents as a result of the Defendants’ unconstitutional and unlawful actions. It is beyond doubt that compensatory damages are one of the reliefs the Court is empowered to grant under section 84 of the former Constitution as well in the 2010 constitution- (See Wachira Weheire v Attorney General Nairobi HC Misc. Appl. No. 1184 of 2003 [2010] eKLR and Harun Thungu Wakaba v Attorney General Nairobi HC Misc. Appl. No. 1411 of 2004 [2010] eKLR).

a. Special damages.The court notes that the Plaintiffs expenses that are stated to the tune of Kshs.4,400,000/= were paid by an independent Non-governmental organization called Independent Medico Legal Unit which is an independent, specialised organization whose primary purpose is to conduct impartial medical and forensic examinations evaluations and assessments for legal and judicial issues. For that reason, this court will not award the Plaintiffs tthe special damages.

b. General Damages.The deceased persons were subjected to unwarranted reckless painful and brutal beatings resulting in their untimely deaths. I consider that a global award would be most appropriate in the circumstances. While the sum awarded may never fill the gap the deceaseds left, it can only serve to vindicate their rights. I consider an award of Kshs. 3,000,000/= as general damages appropriate in the circumstances.In the case of Haruni Thungu Wakaba -v- The Attorney General Misc Appl. No. 1411 of 2004, Okwengu J, (as she then was) awarded the Petitioners who were incarcerated and had their rights violated, general damages for each of the 20 applicants ranging from Kshs. 1,000,000. 00 to Kshs. 3,000,000. 00. In Arnacherry Limited v Attorney General [2014] eKLR, the petitioner was awarded general damages of Kshs. 3,000,000 (Three Million) being compensation for the State’s violation of the petitioner’s constitutional rights; see also Jennifer Muthoni Njoroge & 10 Others V Attorney General [2012] eKLR; Gerald Juma Gichohi & 9 Others v. Attorney General [2015] eKLR, where damages ranged between Kshs. 1. 5million to Kshs. 3 million.In Summaryi.On Liability - Defendants 100% liable, jointly and severally.ii.On Damages - global award to each of the plaintiffs at Kshs. 3 million.iii.Special damages not proved; Nil awardiv.Interest at court rates from date of this judgmentv.Costs to be borne by the defendants.

Orders accordingly.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 9TH DAY OF NOVEMBER 2023JANET MULWAJUDGE