Please Wait. Searching ...
Kinyua (Suing as the legal representative of the Estate of Kibara Njagi (Deceased) & another v OCS Nkubu Police Station & 2 others (Petition 6 & 5 of 2017 (Consolidated)) [2022] KEHC 14238 (KLR) (21 October 2022) (Judgment)
Neutral citation:
[2022] KEHC 14238 (KLR)
Republic of Kenya
Petition 6 & 5 of 2017 (Consolidated)
EM Muriithi, J
October 21, 2022
IN THE MATTER OF A SECTION 84 OF THE CONSTITUTION OF KENYA (REPEALED)
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 70 & 71 OF THE CONSTITUTION OF KENYA (AS REVISED IN 2001, REPEALED)
Between
Njagi Kinyua (Suing as the legal representative of the Estate of Kibara Njagi (Deceased)
1st Petitioner
Peter Nkonge Chabari (Suing as the legal representative of the Estate of Erick Mwenda (Deceased)
2nd Petitioner
and
OCS Nkubu Police Station
1st Respondent
PS Ministry of Interior & Co-ordination of National Government
2nd Respondent
Attorney General
3rd Respondent
Judgment
1.The Petitioners, Njagi Kinyua and Peter Nkonge Chabari moved this Court by way of respective petitions, dated 29th June 2016 and 18th October 2016, seeking:a.A declaration that the deceased rights to life under Section 70 & 71 of the Constitution of Kenya (2001) now repealed were infringed.b.An award of damages as compensation to the estates of the deceased for breach of the deceased’s fundamental rights under Section 70 & 71 of the Constitution of Kenya (2001) now repealed.c.Costs and interests at court rates.
a. The Petitioners’ case
2.On or about the 15/5/2004 at about 5.30 am at Miruriri Market, Kibara Njagi and Erick Mwenda (both deceased), who were unarmed, were fatally injured by bullets fired by the police officers from Nkubu Police Station under the command of the 1st respondent. The lives of the deceased were curtailed as a result of the 1st respondent’s negligence, and therefore the 2nd respondent is vicariously liable for the acts and/or omissions of the 1st respondent in the cause of his duty. Due to the aforesaid negligence, the deceased rights to life as provided under Section 70 and 71 of the Constitution of Kenya (as revised in 2001) now repealed were curtailed, their estates suffered loss and damage and they hold the respondents responsible.
The Respondents’ case
3.The 1st respondent swore a replying affidavit on 2/8/2017 in opposition to the petition. He avers that on 15/5/2004 at about 4.40 am, a report of robbery at Miruiri Trading Centre was made to the then OCS Nkubu Chief Inspector Lawrence Riungu. Upon receipt of that report, the OCS together with his officers went to the scene to counter the robbers. When they got to the scene and identified themselves to the people, the people instead became violent and started attacking them using arrows and stones. The police opened fire thinking that it was the robbers who were shooting at them while trying to escape, and since it was in the wee hours of the morning, visibility was not clear.
4.After the OCS had ordered the officers to stop shooting, it was discovered that two members of the public, who were not robbers, had been shot dead. The police also discovered that the people were fighting them because they thought it was the robbers ordering them to stop. An inquest No. 8/2004 CF 4/2005 was opened but the court made its findings on 12/9/2005 that the police were not liable for the deaths. He urges the court to dismiss the petition as it is an afterthought and an abuse of the court process, as it has been filed 12 years after the findings of the inquest were made. In his view, there was no violation of the petitioners’ rights by the respondents, as the police were exercising their Constitutional duty of maintaining law and order, when they were confronted by armed people who they thought were the robbers they had gone to deal with.
Further Affidavit in Support
5.Japhet Muthamia Joseph swore a further affidavit on 9/3/2020 in support of the petition. He avers that on 15/5/2004 at about 2.00 pm, they were woken up by Eric Mwenda (deceased) and his brother Kiambi who informed them that the market had been invaded by thieves. He unsuccessfully went in search of the thieves in the company of 14 others, and they converged at Patrick Mbae’s shop at 5.30 am to keep vigil till dawn. While still there, the police came and Patrick Mbae (now deceased) recognized them and informed the other people. The police without any provocation opened fire on the people there, who were unarmed killing Mwenda, Patrick and Kibara Njagi. He accuses the police of being negligent for shooting without satisfying themselves that it was necessary, as it was morning already.
6.The 1st petitioner swore a further further affidavit in support of the petition on 16/3/2022 faulting the police for failing to summon the proper witnesses in the inquest, in a bid to cover up their negligence. He avers that he was an eye witness to the shooting by the police yet he was not called as a witness to testify during the inquest proceedings. He relies on Rael Kendi Mbae (Suing as the legal representative of the Estate of Patrick Mbae M’Muruga (Deceased) v OCS Nkubu Police Station & 2 others [2019] eKLR which emanated from the facts herein. He wants the police to take responsibility for shooting his son in cold blood and unlawfully taking his right to life away.
7.The 2nd petitioner and David Mbae M’Arimi swore affidavits on 18/10/2016 fully supporting the petitions.
Oral Evidence
8.PW1 Lenson Njagi Kinyua testified that Kibara Njagi (now deceased) was his child, and he succumbed to the gunshot wounds he sustained on 15/5/2004. The deceased was aged 20 years and he had a small business at Mururiiri market. He blamed the police for shooting his son, who was innocent. He produced the death certificate, Grant Ad Litem and the post mortem report as exhibits in court.
Submissions
9.The 1st petitioner submits that the petition is premised on the tort of negligence, the right to life under the repealed Constitution and the use and/or abuse of firearms as provided under the Firearms Act. He submits that the inquest was conducted without his knowledge and/or participation and eye witnesses to the shooting were also not summoned to give evidence. He urges the court to hold the respondents 100% liable for depriving a law abiding citizen of his life and grant the orders sought. Reliance is placed on Rael Kendi Mbae (Suing as the legal representative of the Estate of Patrick Mbae M’Muruga (Deceased) v OCS Nkubu Police Station & 2 others [2019] eKLR, Mburu Njuguna (Suing on behalf of the estate of John Macharia Mburu (deceased) v Chief Korogocho Location & 3 Others (2014) eKLR and Florence Amunga Omukanda & Another v Attorney General & 2 others (2016) eKLR.
10.The respondents submit that the instant petition falls way below the Constitutional threshold set out in Amos Kiumo & 2 others v Cabinet Secretary, Ministry of Interior & Co-ordination of National Government & 8 others (2014)eKLR and Anarita Karimi Njeru v AG (No.1) (1979) KLR 154. They fault the petitioner for failing to establish the nexus between what befall the deceased and the conduct of the 1st respondent. They urge that the petition is untenable, mischievous, suspiciously generalized without particularity and an abuse of the court process because it was filed 6 years after the promulgation of the 2010 Constitution.
Analysis and Determination
11.Having considered the pleadings herein, the testimonies of the witnesses together with the submissions, the court finds the issues for determination to be whether the rights life of the deceased were violated by the respondents, and what compensation, if any, should be made.
12.On the one hand, the petitioners contend that the deceased’s lives were unlawfully cut short by the careless, negligent, illegal and indiscriminate firing by the Respondents, while on the other hand, the Respondents contend that there was no fault on their part as the alleged shooting took place in the course of the exercise of their Constitutional duty to protect people against robbers. The undisputed facts of this case are that there was a shooting by police officers on 15/5/2004, which took the lives of the deceased herein, as shown by the post mortem reports on record.
13.There is no limitation period on the claims made under the Constitution for redress of violations of rights and fundamental freedoms. In addition, as held by Mabeya J. in Rael Kendi Mbae, supra, the third petition arising from this incident subject of these proceedings, the delay of 12 years in the circumstances of this case was not unreasonably long, and no prejudice is suffered by the Respondents.
14.The petition is founded on the provisions of sections 70 and 71 of the former Constitution, which is applicable to the circumstances of this case which occurred on 15/5/2004. Section 70 of the former Constitution provides that:
15.Section 71 of the former Constitution provides for protection of right to life as follows:
16.The bone of contention is whether the said shooting was justified and exempted by virtue of section 71 of the Constitution, set out above. The 1st respondent has acknowledged at paragraph 8 in his replying that, “..after the police and the people ceased fire, police discovered that the two members of the public had been shot dead. The police talked to the people and discovered that the people shot were not the robbers. The police also discovered that the people were fighting the police because they also thought it was the robbers ordering them to stop.”
17.With the detailed narration of the events of the fateful day by eye witnesses, namely Japhet Muthamia Joseph, the 2nd petitioner and David Mbae M’Arimi in their respective affidavits, it is clear to this court that the circumstances under which the deceased were shot dead do not fall within the exceptions provided under Section 71 of the Constitution. This court has considered the witness statements recorded in respect to the inquest, and in particular those by Alikanjero Muriithi, Brigit Kajuju Mwenda, Japhet Muthamia Joseph, Peter Nkonge Kinyamu and Purity Kanana Solomon, who were all eye witnesses. It is admitted in those statements by the eye witnesses that the police did not identify themselves to the people, which culminated into the shooting and scampering for safety. It was not shown that the Respondents had attempted to shoot in the air to warn the alleged mob that was shooting arrows and throwing stones at the police in an attempt to stop the attack and contain the situation.
18.This court notes that the inquest file, where the police were vindicated, was only opened a year after the incident after innumerable correspondence by counsels for the deceased families to the respondents. It is not inconceivable that the police who were in charge of calling the witnesses in the Inquest did not call crucial witnesses as urged by the 1st Petitioner.
19.In Law Society of Kenya & 2 others v Attorney General & 2 others [2018] eKLR, this Court emphasized the sanctity of life as follows:
20.It is this court’s finding that the petitioners have proved on a balance of probabilities that the lives of the deceased were unlawfully cut short by the 1st respondent and his officers, in the guise of exercising their constitutional mandate of maintaining law and order. It is not lost to this court that one of the deceased was killed in the prime of his life, by the negligent and irresponsible action of the respondents, while at the youthful age of 20 years.
21.In exercise of its jurisdiction under Articles 23 and 165 (3) (b) of the Constitution, 2010, to redress denial, violation, threat or infringement of rights and fundamental freedoms, this court finds that the deceased persons’ rights to life protected under Sections 70 and 71 of the former Constitution was violated in the action of the police officers who, while on duty answering distress calls, in unnecessary, unlawful, illegal and excessive force shot at the crowd and killed the victims subject of the petitions in this case without seeking lesser methods of containing the situation and neutralizing any real or perceived threat to themselves. The Respondents were vicariously liable.
22.As in Florence Amunga Omukanda & Anor. v. A.G & 2 Ors. (2016) eKLR, (Lenaola, Mumbi Ngugi & Odunga, JJ. (as they were), this Court finds “the shooting of [the petitioners] was negligent, illegal and with use of excessive force.”
23.This court notes that in the related case of Rael Kendi Mbae case (Supra) arising from the same incident, Mabeya J. awarded the petitioner Ksh.2,500,000. In the spirit of uniformity of awards for personal injury, this court considers the sum of Ksh.2,500,000 as adequate compensation to each petitioner for the fatal injury of their children.
Orders
24.The upshot from the foregoing is that the petition is allowed in the following terms:a.A declaration is hereby issued that the deceased’s rights to life under Sections 70 and 71 of the former Constitution of Kenya, now repealed, were infringed.b.The Estates of the deceased are hereby each awarded the sum of Ksh.2,500,000/= for the breach of the deceased fundamental rights to life under Sections 70 and 71 of the former Constitution of Kenya (now repealed).Order accordingly.
DATED AND DELIVERED THIS 21ST DAY OF OCTOBER, 2022.EDWARD M. MURIITHIJUDGEAPPEARANCES:M/S Muia Mwanzia & Co. Advocates for the Petitioners.Mr. J. M. Kiongo Senior Litigation Counsel for the Respondents.
