Effect of undue delay in filing a constitutional petition.

Daniel Kibet Mutai & 9 others v Attorney General

Civil Appeal 95 of 2016

Court of Appeal at Eldoret

HM Okwengu and J Mohammed, JJA

November 28, 2019

Reported by Ribia John

Civil practice and procedure – doctrine of latches – limitation of time – limitation of time in constitutional petitions – where a constitutional petition was filed 30 years after the cause of action arose - whether a constitutional petition would be defeated by the doctrine of laches if the action was filed after an unexpected - what was the effect of undue delay in filing a constitutional petition.

Evidence Law – weight of oral evidence – weight of affidavit evidence – weight of oral evidence vis-à-vis weight affidavit evidence - whether the weight of oral evidence was superior to the weight of affidavit evidence.

Evidence Law – uncontroverted evidence – challenging uncontroverted evidence - whether a trial court in exercise of its discretion could question evidence that had not been challenged - whether doing so would be applying a higher standard of proof than that of a balance of probability.

Evidence Law – medical evidence – medical report – where affidavit evidence was uncontroverted – where an applicant was not able to attain medical reports due to incarceration for a long time - whether it was necessary to provide medical evidence for injuries suffered where the injured party had no opportunity to get such medical reports due to incarceration for a long period and the injured party having being released long after the events that caused injury.

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – award of damages – public interest occasioned by awarding damages from public coffers - whether public interest occasioned by awarding damages from public coffers outweighed the enforcement and protection fundamental rights and freedoms.

Constitutional Law – fundamental rights and freedoms – right to a fair trial – claim of violation of the right to a fair trial – where the trial court’s proceedings were not available for review by the court - whether a court could determine if one’s right to fair trial was violated without the proceedings of the trial court – Constitution of Kenya, 2010 article 50(2).

Criminal Law – remission – denial of remission – denial of remission without justification – impact of - whether the denial of remission without justification meant that one was unlawfully deprived of freedom.

Statutes – interpretation of statutes – Prisons Act – section 46(1) – remission – use of the word ‘may’ in providing that convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one-third of their sentence or sentences - whether the use of the word “may” in section 46(1) of the Prisons Act connoted a discretion to give or not to give remission.

Constitutional Law – constitutional petition – matters that could be addressed in a constitutional petitioner – unfair dismissal claim - whether an action of unfair dismissal could be determined in a constitutional petition as opposed to under a claim under the Employment Act

Brief Facts

The appeal arose from the events of the 1982 coup attempt that was initiated by members of the then Kenya Air Armed Force. The attempted coup failed following the intervention of the Kenya Army Armed Forces who quelled the coup and matters reverted back to normal. Following the attempted coup, the appellants who were all serving as officers of the Kenya Air Force (KAF) at the material time, were arrested, detained, arraigned and charged before a Court Martial; and then all dismissed from the Kenya Air Force. The appellants were each aggrieved by their dismissal which they contended was unfair, they also claimed that their constitutional rights were violated during their arrest and pre- arraignment.

The appellants’ action was lodged at the trial court on October 2, 2012, almost 30 years after the cause of action arose.  The appellants filed only affidavit evidence at the trial court. The trial court found that had there had been undue laches as the appellants’ claim was brought after inordinate delay, and that no explanation was given for the delay. Further, that the appellants failed to adduce concrete and tangible evidence to prove any of their allegations of violation of their fundamental rights not to be tortured or deprived of personal liberty, nor did they offer any factual or evidential evidence that could form the basis for an award of damages. Consequently, the trial dismissed the petition. Aggrieved by the trial court’s decision, the applicant filed the instant decision.

Issues

1. Whether a constitutional petition would be defeated by the doctrine of laches if the action was filed after an unexpected delay.
2. What was the effect of undue delay in filing a constitutional petition?
3. Whether a trial court in exercise of its discretion could question evidence that had not been challenged and whether doing so would be applying a higher standard of proof than that of a balance of probability.
4. Whether the weight of oral evidence was superior to the weight of affidavit evidence.
5. Whether psychological and mental torture that could not necessarily leave any telltale signs needed to be proved by medical documents in court.
6. Whether it was necessary to provide medical evidence for injuries suffered where the injured party had no opportunity to get such medical reports due to incarceration for a long period and the injured party having being released long after the events that caused injury.
7. Whether public interest occasioned by awarding damages from public coffers outweighed the enforcement and protection fundamental rights and freedoms.
8. Whether the use of the word “may” in section 46(1) of the Prisons Act connoted a discretion to give or not to give remission.
9. Whether the denial of remission without justification meant that one was unlawfully deprived of freedom.
10. Whether a court could determine if one’s right to fair trial was violated without the proceedings of the trial court.
11. Whether an action of unfair dismissal could be determined in a constitutional petition as opposed to under a claim under the Employment Act

Relevant Provisions of the Law

Prisons Act

Section 46

46.      Remission of part of sentence of certain prisoners

(1)       Convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences, for a period exceeding one month, may by industry and good conduct earn a remission of one-third of their sentence or sentences:

Provided that in no case shall—

(i)        any remission granted result in the release of a prisoner until he has served one calendar month;

(ii)       any remission be granted to a prisoner sentenced to imprisonment for life or for an offence under section 296(1) or 297(1) of the Penal Code (Cap. 63) or to be detained during the President’s pleasure.

(2)       For the purpose of giving effect to the provisions of subsection (1) of this section, each prisoner on admission shall be credited with the full amount of remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.

(3)       A prisoner may lose remission as a result of its forfeiture for an offence against prison discipline, and shall not earn any remission in respect of any period—

(a)      spent in hospital through his own fault or while malingering; or

(b)      while undergoing confinement as a punishment in a separate cell.

(3A)    A prisoner may be deprived of remission—

(a)      where the Commissioner considers that it is in the interests of the reformation and rehabilitation of the prisoner;

(b)      where the Minister for the time being responsible for internal security considers that it is in the interests of public security or public order.

(4)       Notwithstanding the provisions of subsection (1) of this section, on the recommendation of the Commissioner, the Minister may grant a further remission on the grounds of exceptional merit, permanent ill-health or other special grounds.

(5)       The Minister shall have power to restore forfeited remission in whole or in part.

Court of Appeal Rules

Rule 32

Judgment

(3)       In civil applications (other than applications heard by a single judge) and civil appeals, separate judgments shall be given by the members of the Court unless, the decision being unanimous, the presiding judge otherwise directs, but where one judge delays, dies, ceases to hold office, or is unable to perform the functions of his office because of infirmity of mind or body, separate concurring judgments may be given by the remaining members of the court.

Held

Per H Okwengu, JA

1. It was the duty of the first appellate court to analyze and re-assess the evidence on record and reach its own conclusions in the matter. As the hearing of the petition did not proceed by way of oral evidence, but through affidavit evidence and submissions, the appellate court was in the same position as the High Court, to the extent that just like the High Court it did not have the advantage of seeing and assessing the demeanour of the witnesses. The appellate court had the obligation of reconsidering the affidavit evidence, the rival submissions made by the parties, and the law, in order to draw its own conclusions.
2. The trial court treated oral evidence (which in the instant case was not available), as superior to affidavit evidence and thereby dismissed the appellants’ affidavits as bare allegations. The trial court failed to appreciate that what was sworn under oath was not a simple matter but a serious issue, for which a deponent could be charged with perjury if it turned out that the deponent had lied under oath. The consequences were the same as that for a witness who testified orally and perjures himself by lying on oath. The affidavit evidence was legally admissible evidence in a court of law. It occupied the same place as any other evidence that was admissible in a court of law.
3. A reading of rule 20 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 showed that affidavit evidence was provided for on the same pedestal as oral evidence. The trial court had the discretion to direct that the hearing of the petition proceeds by way of oral evidence if it deemed it necessary to do so. The parties sought to proceed by way of affidavit evidence, and the trial court having not exercised the discretion to direct the parties to proceed by way of oral evidence, or to call any of the deponents of the affidavits for cross-examination, the trial court had no reason to disparage the affidavit evidence.
4. Not only was no replying affidavit sworn, but the respondent to some extent pleaded justification. The respondent was asserting that assuming that the facts were as alleged they were justified in the actions taken. The appellants’ affidavits not having been challenged by the respondent, the facts averred were essentially admitted. The trial court erred in rejecting the affidavit evidence as it formed an appropriate basis for the claim.
5. The trial court failed to distinguish admission of the claim from admission of the facts alleged in support of the claim. The respondent did not file any replying affidavit challenging the facts that were alleged. However, the respondent filed grounds of opposition maintaining that it was not liable to the appellants basically on grounds of law, to wit that the petition was incurably defective; that it did not rise to the threshold of a constitutional petition as envisaged by article 22 of the Constitution; that there has been undue laches running into thirty years; that the Department of Defence was entitled under the Armed Forces Act to take certain disciplinary measures; and that the petitioners were subjected to due process.
6. The burden of proof was on the appellants to prove the facts which they asserted. The appellants in their supporting affidavit deposed to facts which showed how they were arrested immediately after the attempted coup; the treatment that they were subjected to after they were arrested; the places where they were detained; how each was treated during pre-trial detention; and the trial and sentence at the Court Martial. Although there were no annexures or other evidence in support of the appellants’ alleged arrest, torture or even incarceration at the prison (except for the 1^st appellant who annexed newspaper articles of his conviction and sentence for the charge of mutiny, and a subsequent appeal), the fact of the appellants being officers of the Kenya Airforce, their arrest and imprisonment for mutiny as a result of the attempted coup, was not denied. The trial court had no reason to question the appellants’ affidavit evidence as they laid an appropriate basis for the appellant’s claim. 
7. The appellants swore to what they personally suffered and experienced, and therefore their averments in the affidavits were direct evidence of what transpired. While the appellants did not have medical documents to substantiate their allegations that they were mistreated and suffered injuries, it had to be appreciated that they had no opportunity to get such medical reports as most of them were incarcerated for a long time and only released long after the events that they were complaining about. Moreover, much of the torture and inhuman treatment that they alleged they suffered such as being stripped naked and kept in solitary confinement in water logged cells for days; being kept in a permanently overcrowded cell without proper ventilation and with a permanent pungent foul odour and with lights on day and night; and being subjected to incessant interrogation; being held incommunicado without access to treatment, visits or access to any person; were all psychological and mental torture that could not necessarily leave any telltale signs.
8. The standard of proof was one of a balance of probability, and the High Court could not treat the proceedings relating to the appellant’s petition differently merely because the respondent was the State. Much as there was an element of public interest in the litigation as payment of any damages would come from the public coffers, fundamental rights and freedoms were sacrosanct and the court had a high responsibility of protecting those rights. The respondent having made a conscious and deliberate decision not to respond to or challenge the appellants’ affidavit evidence, the trial court could not become the respondents’ advocates by questioning evidence that had not been challenged. In effect that would amount to applying a higher standard of proof than that of a balance of probability.
9. The issue of medical evidence was of more relevance in the assessment of damages rather than in assessing the credibility of the appellant’s evidence. The similarity of the facts averred in the affidavits could not be read against the appellants. After all they were all being held for more or less the same reasons, and being subjected to interrogation by officers of the Kenya Army who were no doubt using similar tactics to break their resistance. The similarity reinforces and provides consistency in the conduct of the Kenya Army officials in the way they dealt with the Kenya Airforce officers whom they deemed to be insurgents. It would be unreasonable to expect that the appellants would know the names of the officers who subjected them to torture. As far as they were concerned the officers were officers of the Kenya Army, and it was not denied that they were arrested and detained.  That was sufficient for the purpose of their petition.
10. The appellants did not give any reasons in their affidavits, for the delay in filing their petition. Instead, an attempt was made by the appellants’ advocate to explain the delay in the written submissions. But written submissions were mere arguments postulated by counsel, which could not pass for proven facts. Moreover, assuming that the appellate court was to take judicial notice of the fact that the appellants could not bring their claim during President Moi’s regime, there was no explanation given as to why the claim was not filed immediately after the impugned President Moi left power after the 2002 elections.
11. The delay of 30 years was not explained. Where there had been inordinate delay in bringing an action for violation of fundamental rights, appropriate facts had to be placed before the court to enable the court exercise its discretion judicially, in accepting or rejecting the explanation for the delay, with the benefit of all information regarding the particular circumstances before it.
12. Delay was an anathema to fair trial which was one of the key fundamental rights provided to all litigants under article 50 of the Constitution. Furthermore, it would be an abuse of the court process and contrary to the constitutional principles espoused in article 159 that required justice to be administered without delay, to allow a party who alleges violation of constitutional rights, to bring their action after undue inordinate delay, without any justifiable reason. The appellants’ action was properly dismissed.
13. section 46(1) of the Prisons Act provided that except for prisoners sentenced to life imprisonment, or sentenced under section 296(1) or sentenced under the president’s pleasure, all convicted prisoners could by industry and good conduct earn remission of their term of imprisonment as section 46(2) indicated that each prisoner was to be credited upon admission with full amount of remission that he would be entitled to if he did not lose any remission of sentence. Section 46(3) and (4) listed the circumstances in which a prisoner could lose or be deprived of the remission. Therefore, the use of the word “may” in section 46(1) did not connote a discretion to give or not to give remission, but the fact that remission was not absolute as it could be lost in certain circumstances.
14. The 2^nd appellant, 7^th appellant, and 8^th appellant swore that they were not given any remission and each served their full term of imprisonment. The reason why the appellants lost their remission was a matter that was specially within the knowledge of the Prisons Department. In the absence of a replying affidavit from the respondent, there was no justification given for the denial of the remission. Remission was a legal right that the 2^nd, 7^th and 8^th appellants were entitled to enjoy, and contrary to the finding of the trial court, the denial meant that the appellants were unlawfully deprived of their freedom.
15. Section 102(6) of the Armed Forces Act (repealed) was applicable for the 1^st, 2^nd,6^th, 7^th, 8^th, 9^th and 10^th appellants who were all convicted by the Court Martial for the offence of mutiny. Their dismissal was the logical and legal consequence of their conviction. The action for unfair dismissal was not maintainable in regard to the the 1^st, 2^nd,6^th, 7^th, 8^th, 9^th and 10^th appellants.  As for the 3^rd, 4^th and 5^th appellants, they were not convicted of any offence under the Armed Forces Act (repealed) nor did the respondent demonstrate that they committed any act that warranted their dismissal from the service. Each of them claimed not to have been involved in the mutiny, and the fact that they were released without being charged with any offence vindicated them. Their dismissal had not been shown to have been justified under section 102 of the Armed Forces Act (repealed). However, the appellants did not seek any relief for this in their petition. Moreover, their claim for unfair dismissal was an independent claim that ought to have been pursed under the Employment Act.
16. The trial court did not draw a distinction between the appellants who were tried and convicted for the offence of mutiny, and those appellants who were detained for several months and subsequently released without being charged. The trial court noted that there was dearth of evidence to support the allegations that the appellants were held for long periods before being arraigned in court. The trial court did not take into account the affidavit evidence that was availed by each appellant explaining how each was subjected to physical and mental torture, and the periods that they were held. The affidavit evidence was not controverted.
17. Under article 25(a) of the Constitution, freedom from torture and cruel, inhuman or degrading treatment or punishment was a fundamental right that could not be limited. That meant that the fact that the appellants were members of the disciplined forces did not preclude them from enjoying this right. The actions of being physically and mentally tortured through brutal beatings, denial of food for days and solitary confinements were all acts of torture and degrading treatment intended to demoralize, demean and weaken the appellants in order to breakdown their resistance.
18. The appellants had the obligation to avail evidence in proving the extent of the injury they suffered from the physical and mental torture that each of them experienced.  That was necessary for purposes of helping the court in assessing the damages that should be awarded. In the absence of such evidence the court could only award a nominal amount, and a global amount of Kshs. 2 million would have sufficed as damages to each appellant for violation of their fundamental rights in regard to human dignity, protection against torture, cruel, inhuman and or degrading punishment during their arrest and pre-arraignment detention following the attempted coup.
19. Without copies of proceedings of the court martial, the evidence placed was insufficient to come to the conclusion that the appellants were denied a right to fair trial. The dismissal of the appellants’ claim in that regard by the trial court was upheld. The appellants’ action for violation of their fundamental rights could not succeed.

Per J Mohammed, JA

20. The appellants have not given any explanation at all for the delay in bringing their action. Although there was no time limit in respect of constitutional petitions, and such a petition would ordinarily not be defeated by the doctrine of laches; an unexplained delay of almost 30 years in bringing the action, made it impracticable for the court to properly administer justice and render the action an abuse of the court process.

Appeal partly allowed, no order as to costs.

*The judgment had been delivered in accordance with rule 32(3) of the Court of Appeal Rules as Justice P Waki, JA had retired from service.