Issue No. (ii) Whether the Court Martial proceedings were unlawful.
30.It is not disputed that there was an attempted coup in 1982. It is also not disputed that the Petitioners were Court Martialed, convicted and sentenced to 5 years and 12 years imprisonment, respectively. Mr. Osoro submitted that the Court Martial proceedings were unlawfully undertaken at night. He therefore urged that the respondent should have produced the said proceedings.
31.It is the petitioners’ case that they appealed against the decision of the Court Martial and their sentences were reduced to 2 years and 5 years respectively, by a bench sitting in Kakamega High Court. Two things come out clearly:i.For the High Court at Kakamega to have heard the Appeal there must have been a clear record of Appeal containing the proceedings, decision and grounds of appeal.ii.The Appeal Court only reduced the sentence. It in other words confirmed the conviction. Had there been any issue with the proceedings the Appeal Court would not have confirmed the conviction. Had the petitioners been sincere in their claims they would have availed to this court a copy of the Court Martial proceedings and the High Court decision.iii.Since the issue of the Court Martial proceedings was dealt with on Appeal, this Court cannot again address it in this petition.
Issue No. (iii) Was there inordinate delay in filing the petition?
32.The respondent has argued that there was delay in filing of this petition. On the other hand the petitioners have defended themselves stating that there was no way they could have filed the suit when the government that tortured them together with its officers were still in power and in office respectively. There is no dispute that the alleged violations took place in August 1982, and the suit herein was filed in 2017. This is a difference of thirty five (35) years.
33.This issue of inordinate delay in filing petitions claiming violation of constitutional rights has been addressed in a good number of cases. I will look at a few of them.In the case of Ochieng Kenneth K’Ogutu vs. Kenyatta University & 2 others High Court Petition No. 306 of 2012 the Court observed as follows:“As I conclude this matter, I will address the issue of delay in filing this petition. The respondent has argued that the petitioner is guilty of inordinate delay, and I am inclined to agree with it. The events complained of took place more than 12 years ago. There is nothing before the court that explains or justifies the delay in coming to court to vindicate his rights. The petitioner’s counsel submitted that he was so traumatised that he could not come to court before, but I can see no basis for this submission. While the petitioner alleges that he was arrested and charged, and that he served for 15 days before his fine was paid, I cannot see any basis for alleging that he was so traumatised that it has taken him 12 years to recollect that he had a claim against the respondents. While the reason for delay in cases such as those involving the Nyayo House torture cases may be acceptable, at least for a time, that they were not able to file claims because of the politically repressive climate then prevailing, there is no such justification in this case. Even had I found that the facts demonstrated a violation of the petitioner’s rights (which I have not), I would have had difficulty in excusing the 12 years’ delay in this matter.” (Emphasis added)
34.The court further observed as follows:”There is a great danger that parties are abusing the constitutional protection of rights to bring claims before the court whose sole aim is enrichment rather than vindication of rights. A delay of 10 years or more before one comes to court to allege violation of rights is clearly not justifiable. As Nyamu J observed in Abraham Kaisha Kanzika and Another vs Central Bank of Kenya (supra): “Even where there is no specified period of limitation it is proper for the court to consider the period of delay since the accrual of the claim and the reasons for the delay. An applicant must satisfactorily explain the delay. In this case a delay of 17 years is inordinate and it has not been explained. The prosecution of the claimant took 6 years and although he gives this as the reason for the delay he has not explained the balance of eleven years.In my view failure by a Constitutional Court to recognize general principles of law including, limitation expressed in the Constitution would lead to legal anarchy or crisis. It would also trivialize the constitutional jurisdiction in that applicants would in some cases ignore the enforcement of their rights under the general principles of law in order to convert their subsequent grievance into a “constitutional issue” after the expiry of the prescribed limitation periods.”(Emphasis added)
35.In James Kanyiita Nderitu vs. Attorney General & another Petition No. 180 of 2011 Majanja J observed as follows:
36.When the matter went to the Court of Appeal vide James Kanyiita Nderitu vs. The Attorney General & another  eKLR the said Court affirmed Justice Majanja’s decision. It stated thus:
37.Lastly in the case of Maurice Oketch Owiti Vs. Hon. Attorney General  eKLR, Mumbi Ngugi J (as she then was) had this to say:37.In the present petition, it is not in dispute that the alleged violations took place from 9th May, 1986 to 27th June 1956. The petitioner filed the instant petition on 12th May, 2014. From the evidence, the petitioner waited 28 years to institute these proceedings. What was his justification for doing so? The petitioner has not given any justification for the said delay but has contented himself with the submission that there is no time limit for instituting cases on violations of fundamental rights and freedoms.38.This is a position that can no longer be taken as justifying a litigant who waits inordinately, without presenting any justification, before filing his claim for alleged violation of fundamental rights. As the cases cited above illustrate, Courts have frowned upon and refused to accept the justification that because there is no time limit on constitutional petitions, a party can lodge his claim without proffering reasons for the undue delay.39.Further, as observed in the above cases, delay in cases such as this involving the Nyayo House torture cases may have been acceptable, at least for a time, on the basis that they could not be lodged in view of the politically repressive regime and climate then in place. However, there has been a change of government since 2002, and parties who had suffered under the repressive regime filed and litigated their claims soon thereafter, as the cases relied on by the petitioner illustrate. It cannot be justifiable now to accept that the petitioner could not have filed his claim before the expiry of 28 years after the alleged violations. I am therefore inclined to agree with the AG’s contention that there has been inordinate delay in filing the present matter and no reasonable justification has been given by the petitioner.40.As I observed in the case of Wamahiu Kihoro Wambugu vs Attorney General-High Court Petition No. 468 of 2014:.“Then there is the period it has taken the petitioner to file this petition. It was filed on 18th September 2014, more than 28 years after the alleged events. The petitioner alleges that he did not file his claim because there was a repressive government in place. However, as pointed out by the respondents, there have been more than three changes in government in the twelve years or so preceding the filing of the petition. A large number of petitions alleging violation of constitutional rights have been filed as far back as 2003 and 2004 by persons who had been arrested, held in Nyayo House, tortured and jailed. Cases in point include the two decisions relied on by the petitioner in his submissions that of Mugo Theuri vs Attorney General and Simon Maina Waweru vs Attorney General. The delay may have been as a result of the petitioner’s own doubts about the credibility of his claim. Whatever the reason, however, this is one of the cases in which I would agree with the reasoning of Nyamu J (as he then was) in the case of Lt. Col. Peter Ngari Kagume vs Attorney General (supra) when he stated:
38.The thread running through all the cited cases and others is that courts have expressed dissatisfaction in the late filing of petitions alleging violations of fundamental rights and freedoms. Such late filing must contain a plausible explanation for the delay. The reason must be a convincing one. In arriving at a decision on this, the court must consider both sides of the coin i.e. the petitioner and the respondent and whether such delay would cause an injustice to the respondent in terms of getting witnesses and documentary evidence.
39.In the instance case this country has had by now three (3) different governments since the Moi era. No good reason has been given to explain why the petition was not filed soon after the then government which is alleged to have tortured them left. If parties are to be let to file constitutional petitions at their own pace without a safe guard the high court will find itself in a big mess. That is why the petitioners who filed this petition 35 years after the alleged cause of action arose had to give a plausible explanation for the inordinate delay.My finding is that this petition was filed after an inordinate delay and without any reasonable explanation.
Issue No. (iv) Whether the claims of torture, unlawful imprisonment were proved.
40.Despite my finding on issue no. (iii) I will consider the remaining issues just incase I am mistaken in my above finding. Counsel for the petitioner in arguing on the violation of the Petitioners’ rights submitted severally that the petitioners had each served in the KDF for twelve (12) years. I wish to correct this. The first petitioner was recruited into the KDF on 12th September 1979 and he was discharged in 1982. So he had only served for three (3) years, only. The 2nd petitioner was recruited on 3rd March 1978 and was discharged in 1982. He had served three and half (3 ½) years, only.
41.The petitioners alleged violation of their rights under various Articles of the current Constitution. They have not made mention of any provision under the retired constitution. The incidents complained of occurred in 1982 during the retired Constitution. As was held by the Supreme Court in the case of Samuel Kamau Macharia vs. Kenya Commercial bank & 2 others Civil Application No. 2 of 2011 the 2010 Constitution has no retrospective application. The Articles of the 2010 Constitution cannot in themselves without clear reference to the retired Constitution apply to the petitioners’ complaints. This claim must therefore fail and I so find.