A habeas corpus application does not bar proceedings for the enforcement of fundamental rights and freedoms.
Headnote: The appeal raised pertinent questions on the nature and scope of habeas corpus, the scope of the jurisdiction of the Supreme Court when approached on grounds of general importance vis-à-vis constitutional interpretation and the burden of proof in constitutional petitions. The Supreme Court held that a habeas corpus application did not bar proceedings for the enforcement of fundamental rights and freedoms. That the effect of the Preservation of Public Security Act (repealed) (that legalized detention without trial) was to render the writ of habeas corpus impractical and ineffective. The Supreme Court held that the deceased’s right to personal liberty was violated consequent upon his detention without trial through the detention order. The violation was an act of State, for which compensation should ideally be awarded to the estate of the deceased against the State. However, the appellant had never sued or even sought to join the Attorney General or any other State Organ to the instant proceedings. MK Ibrahim and NS Ndungu, SCJ dissented on the position that the court could not award relief on account of the Attorney General or the State not being a party to the suit. The dissenting courts held that once established that the deceased’s right to personal liberty was violated consequent upon his detention without trial, the Supreme Court ought to have come to his aid whether or not Attorney General or the State in the suit were parties to the suit, and provided effective remedies.

Muriithi (Suing as the Legal Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC, (Suing as the Executrix of the Estate of Hon. Daniel Toroitich Arap Moi) & another (Petition 41 of 2018) [2023] KESC 61 (KLR) (30 June 2023) (Judgment) (with dissent - MK Ibrahim & NS Ndungu, SCJJ)
Supreme Court of Kenya
PM Mwilu, DCJ and VP; MK Ibrahim, SC Wanjala, NS Ndungu, and I Lenaola, SCJJ
June 30, 2023
Reported by John Ribia
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Constitutional Law – fundamental rights and freedoms – remedies – writ of habeas corpus – nature and scope - what was the nature, scope, and rationale of the writ of habeas corpus - whether a habeas corpus application barred proceedings for the enforcement of fundamental rights and freedoms - Constitution of Kenya, 2010 articles 25(d) and 51(d); Preservation of Public Security Act (repealed) section 4(2)(a); Criminal Procedure Code section 389(1); Criminal Procedure (Directions in the Nature of habeas corpus) Rules, 1948;
Statutes – interpretation of Statutes – interpretation of the Preservation of Public Security Act (repealed) – effect of the Preservation of Public Security Act (repealed) on the writ of habeas corpus - what was the effect of the Preservation of Public Security Act (repealed) (that legalized detention without trial) on the writ of habeas corpus - whether a court order in a habeas corpus application could determine the legality of a detention under the provisions of the Preservation of Public Security Act (repealed)
Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeal on certification of a matter as one raising matters of general public importance vis-à-vis appeal on grounds of constitutional interpretation - whether an appellant before the Supreme Court could extend their appeal beyond the parameters which the appeal was certified as one involving a matter of general public importance by the Court of Appeal - whether the Supreme Court could shut appellants out from getting effective reliefs because of electing to pursue an appeal as a matter of general public importance and not one of application or interpretation of the Constitution – Constitution of Kenya, 2010 article 163(4); Preservation of Public Security Act (repealed) section 4(2)(a); Criminal Procedure Code section 389(1); Criminal Procedure (Directions in the Nature of habeas corpus) Rules, 1948 rule 3
Civil Practice and Procedure – pleadings – constitutional petitions – parties to a suit -principle that courts were limited to the reliefs in the pleadings – where one filed a constitutional petition against the former president in his personal capacity but did not join the State or the Attorney General – where the petitioner sought reliefs against the estate of the former president and against the State - whether in a constitutional petition filed against a former President in his private capacity where the State or the Attorney General was not a party, the court could apportion liability to the State - whether courts could apportion liability and/or compensatory relief against a person that had never been a party to the proceedings
Law of Evidence – burden of proof – judicial notice - burden of proof in constitutional petition for the violation of human rights – principle that the one that alleges bore the burden of proving the allegations –where a petitioner was hampered in collecting evidence because of interference by State actors - whether courts could forgo the burden of proof on a petitioner in cases of human rights violations where the state actor deliberately ensured that their victims’ access to information and evidence was severely curtailed - whether in constitutional petitions courts forgo the burden of proof on a petition to prove their claim and instead take judicial notice of incidents that had drawn widespread press coverage - Evidence Act section 3(2), 107, 108, and 109; of the Civil Procedure Rules (repealed) order VI rule 9
Words and Phrases – habeas corpus – definition - a writ employed to bring a person before a court, most frequently to ensure that the person’s imprisonment or detention is not illegal (habeas corpus ad subjiciendum) in addition to being used to test the legality of an arrest or commitment, the writ may be used to obtain judicial review of, the regularity of the extradition process, the right to or amount of bail, or the jurisdiction of a court that had imposed a criminal sentence. - Black’s Law Dictionary

Brief Facts:
The appellant was a former business partner with H.E the late Daniel Toroitich Arap Moi. The appellant contended that when their business interests conflicted, the appellant was unlawfully detained and his interests in the companies that he was a business partner with the former President were sold off without according him with proper compensation. The petitioner (deceased; estate was suing on his behalf) was arrested by the police in May 1982 while at his residence. Unable to trace him for three days, his wife took out a writ of habeas corpus against the Director of Criminal Investigations Department (CID). The court issued summons to the Director of Criminal Investigations, requiring him to appear before the court and show cause why the deceased could not be released. The summons was copied to the Attorney General. In response the State produced in court a copy of a detention order issued pursuant to the Preservation of Public Security Act (repealed) placing the deceased under preventive detention. He informed the court that the original order had been served upon the deceased. The court held that the police had discharged their burden and had shown cause why the deceased could not be set at liberty.
On October 23, 2009, twenty-seven years later, the deceased filed before the High Court, Constitutional and Judicial Review Petition No. 625 of 2009 against H.E the late Daniel Toroitich Arap Moi, who at the time of the deceased’s detention was the President of the Republic of Kenya. The deceased alleged violation of his right to personal liberty and to property enshrined under sections 72, 75 and 84(1) of the repealed Constitution. It was his contention that his detention was illegally orchestrated by President Moi, who was his business partner, for the sole purpose of dispossessing him of his proprietary rights. The High Court held that the deceased’s rights were violated and awarded the deceased a sum of Kshs. 50,000,000/- as punitive damages against President Moi’s unlawful acts, at an interest rate of 12% per annum from the date of the Judgment till payment in full, and Kshs. 80,161,720/- at an interest rate of 12% per annum on a compounded basis for what would have been the deceased’s share of the proceeds of sale from the suit properties.
On the appeal of the respondent, the Court of Appeal held that the that the consideration of a habeas corpus application barred proceedings for the enforcement of fundamental human rights and freedoms. It also held that detention order was issued by the Minister in Charge of Internal Affairs in the Office of the President, and not President himself, hence was an act of State. It therefore overturned the High Court’s findings and instead found that President Moi was not responsible for the deceased’s detention.
Aggrieved the estate of the deceased filed the instant petition in which it contended that Court of Appeal erred by finding that a habeas corpus application barred proceedings for the enforcement of fundamental human rights and freedoms against persons demonstrated to be responsible for the breach of such fundamental rights and freedoms. The appellant contended that liability accrued to the former president as the detention was occasioned by their private business dealings with the former president. The respondents opposed the appeal on grounds that the Supreme Court lacked jurisdiction as the appeal exceeded the parameters pursuant to which it was admitted.

Issues:
  1. What was the nature, scope, and rationale of the writ of habeas corpus?
  2. hether a habeas corpus application barred proceedings for the enforcement of fundamental rights and freedoms.
  3. What was the effect of the Preservation of Public Security Act (repealed) (that legalized detention without trial) on the writ of habeas corpus?
  4. hether a court order in a habeas corpus application could determine the legality of a detention under the provisions of the Preservation of Public Security Act (repealed).
  5. Whether an appellant before the Supreme Court could extend their appeal beyond the parameters which the appeal was certified as one involving a matter of general public importance by the Court of Appeal.
  6. Whether the Supreme Court could shut appellants out from getting effective reliefs because of electing to pursue an appeal as a matter of general public importance and not one of application or interpretation of the Constitution.
  7. Whether courts could apportion liability and/or compensatory relief against a person that had never been a party to the proceedings.
  8. Whether in a constitutional petition filed against a former President in his private capacity where the State or the Attorney General was not a party, the court could apportion liability to the State
  9. Whether courts could forgo the burden of proof on a petitioner in cases of human rights violations where the state actor deliberately ensured that their victims’ access to information and evidence was severely curtailed.
  10. Whether in constitutional petitions courts forgo the burden of proof on a petition to prove their claim and instead take judicial notice of incidents that had drawn widespread press coverage.
Held:
Per PM Mwilu, DCJ and VP; SC Wanjala, and I Lenaola, SCJJ (Majority Decision)
  1. The appeal was before the Supreme Court having been certified as one involving a matter of general public importance under article 163(4)(b) of the Constitution of Kenya, 2010. The delineated issues for determination derived from what the court considered as matters of general public importance. The jurisdiction of the court to entertain the appeal was conclusively determined at the stage of certification. The respondents could not argue that the appeal did not raise any weighty constitutional questions to warrant the Supreme Court’s further intervention. Whether the appeal exceeded the parameters of leave granted by the Court of Appeal was a matter for the Supreme Court to decide as it disposed of the same.
  2. Habeas corpus originated from a Latin maxim which simply translated to, you have the body, and by extension, produce the body. The essence of a writ or order of habeas corpus was to secure the production of a person in a court of law by the State so as to facilitate a judicial inquiry into the reasons for his/her incarceration. The application for such an order, was usually directed at an agency of the State, where the applicant had reason to believe that the missing person, was in the custody of the former. The writ of habeas corpus was a fountain of liberty, a bulwark against illegal confinement of those, who would otherwise be free. It liberated the oppressed from the dungeons of those who wield authority over the citizenry.
  3. Before the promulgation of the the Constitution of Kenya, 2010, (the Constitution ) the writ of habeas corpus applied in Kenya as a common law doctrine by virtue of section 3 (1)(c) of the Judicature Act. The jurisdiction to issue the writ vested as it still did, in the High Court. It was a special and supervisory jurisdiction which empowered the High Court to oversee, safeguard and uphold the liberty of a citizen in the event of an illegal incarceration. The writ of habeas corpus was enshrined in under articles 25(d) and 51(d) of the Constitution as a fundamental right from which there could be no derogation.
  4. Section 389 (1) of the Criminal Procedure Code provided the orders that the High Court could issue under habeas corpus jurisdiction. The Criminal Procedure (Directions in the Nature of habeas corpus) Rules, 1948 provided that an application shall be made by way of chamber summons supported by an affidavit. If not summarily dismissed, the court directed that summons be issued to the person alleged to be holding the detainee to show cause why the detainee should not be released. The summons and its supporting affidavit must be served upon the Attorney General.
  5. he writ of habeas corpus, once granted or denied, could not operate as a bar to any further proceedings. Habeas corpus was meant to secure the release into liberty of a person from unlawful custody. The writ of habeas corpus was never fashioned to grant relief beyond release of a person from unlawful custody. The grant or denial of the writ did not deprive an applicant from pursuing recompense from the court for violation of his right to liberty occasioned by the unlawful detention. Such a claim for compensation could not be filed contemporaneously with a petition for a writ of habeas corpus. The pursuit of compensation for a violation occasioned by the unlawful incarceration of a person, could not be extinguished by his release through a writ of habeas corpus.
  6. The Preservation of Public Security Act (repealed) empowered the minister responsible for internal security, to issue an order for the detention without trial, of a person who in the opinion of the minister, was a danger to public security. The objective of the writ of habeas corpus was to secure the liberty of a person, while that of the Preservation of Public Security Act (repealed) was to limit the liberty of a person. The procedure under the former, was judicial while the one under the latter, was administrative. The effect of the Preservation of Public Security Act (repealed) was to render the writ of habeas corpus inoperable. At the time of the deceased’s detention, what was produced before the court following an application for habeas corpus, was not a body, but of a copy of an order, ousting the High Court’s authority to inquire into the legality of the deceased’s detention.
  7. In the proceedings, the High Court acknowledged the fact that the writ of habeas corpus was no longer available to the applicant in the face of the Preservation of Public Security Act (repealed). That was a classic case of rule by law as opposed to rule of law” It was during that dark period in the history of Kenya that many citizens who dared find fault with the government of the day, got detained without trial for indeterminate terms, at the pleasure of their tormentor.
  8. It was not possible for a court to determine the lawfulness of a detention when the entire process of inquiry had been frozen by a detention order. The body could neither be produced, nor could an inquiry into the legality of the detention be conducted given the ouster of the High Court’s authority to do that.
  9. instant appeal was admitted on the basis of two issues; whether a habeas corpus application barred proceedings for enforcement of fundamental rights and freedoms; and whether a court order in a habeas corpus application could determine the legality of a detention under the provisions of the Preservation of Public Security Act (repealed); as formulated by the Court of Appeal. The appellant was allowed to canvass the two issues because the court considered them to be of general public importance. The appellant was not at liberty to reopen his appeal beyond the parameters pursuant to which it was admitted.
  10. etention without trial, orchestrated by the State, against its critics amounted to a violation of the personal liberties of the detainees. The Bill of Rights was a non-negotiable covenant. It could not be legislated away or ousted by Parliament.
  11. he deceased’s right to personal liberty was violated consequent upon his detention without trial through the detention order. The violation was an act of State, for which compensation should ideally be awarded to the estate of the deceased against the State. However, the appellant had never sued or even sought to join the Attorney General or any other State Organ to the instant proceedings. The Supreme Court was faced with considerable difficulty on how to apportion liability, hence compensatory relief, against a person or agency that had never been a party to the proceedings. A party was always bound by their pleadings. The Supreme Court restricted itself within pleadings.
  12. The Supreme Court was not able to sanction any other form of compensation against the estate of President Moi based on the claims of fraudulent sale of company shares; claims that had been discounted by the Court of Appeal for insufficiency of evidence. Apart from the fact that the issue was not before the court, such a claim would be well founded not in public law, but company law, where the principle in Salomon v A Salomon and Co Ltd [1897] AC 22 (principle of separate legal personality of a company) still held sway.
Appeal dismissed, security for costs to be refunded to the appellant, each party was to bear its own costs.
Per MK Ibrahim, SCJ (Dissenting)
  1. The sole purpose of the writ of habeas corpus was to free persons from impermissible detention. A person may still seek compensation from the court for a violation of their right to liberty brought on by the illegal imprisonment whether the writ was granted or not. A petition for a writ of habeas corpus could not be filed concurrently with such a claim for compensation.
  2. one hand, the purpose of habeas corpus had always been to ensure that a person in custody was brought before a court of law so that it could be decided whether or not his detention was legal. The rights to personal liberty had always been guaranteed under the Constitution. With Independence, a Bill of Rights was entrenched in the Independence Constitution (the repealed Constitution before it was amended) to facilitate the protection of individual rights. Section 16 thereof guaranteed the right to personal liberty. Section 29 however provided for declaration of emergency during which derogation from section 16 was permitted if passed under the authority of an Act of Parliament.
  3. In 1966, section 83 and 85 of the repealed Constitution (previously sections 16 and 29 respectively of the independence Constitution) were amended through Act No. 18 of 1966. The Preservation of Public Security Act (repealed) was also amended to wit; the term emergency was replaced by the term public security; the period for parliamentary review of the emergency order was increased from two months to eight months; and greater and wider derogations from the rights guaranteed in the Bill of rights were permitted.
  4. The Constitution (Public Security) Order, L.N. 211 of 1966 brought Part III of the Preservation of Public Security Act (repealed) into operation, and the executive invoked the powers granted to it by section 4 (2) (a) and (b) of the Act. Significantly the sub-sections provided for the detention of persons, the registration of persons and restriction of movement and the compulsory movement of persons, including the imposition of curfews. Detailed rules governing the detention of persons were made, being the Preservation of Public Security (Detained and Restricted Persons) Regulations, 1978. The President delegated his power of detention to the Minister of Home Affairs under rule 6 of the Preservation of Public Security (Detained and Restricted Persons) Regulations. Act No. 10 of 1997 deleted the provisions of section 4(2)(a).
  5. Preservation of Public Security Act (repealed) and the Preservation of Public Security (Detained and Restricted Persons) Regulations, 1978 were applicable at the time of the appellant’s detainment.
  6. Preservation of Public Security Act (repealed) gave the Minister in charge of internal security the authority to order the detention of anyone who, in his or her judgment, posed a threat to public safety. Juxtaposing that to the purpose of the writ of habeas corpus fashioned to protect an individual's right to liberty, the net result was that the Preservation of Public Security Act (repealed)was intended to do the exact opposite by arbitrarily restricting an individual's freedom. The former involved a judicial process, whereas the latter involved an administrative one. The Preservation of Public Security Act (repealed) had the effect of invalidating the habeas corpus writ. When the deceased was being held in custody, the only thing that was presented to the court in response to a request for habeas corpus was a copy of a detention order that barred the court from considering whether the deceased's detention was lawful.
  7. writ of habeas corpus application by the appellant did not operate as a bar to further proceedings. The Court of Appeal erred in setting aside the declaration by the High Court that the appellant’s detention violated his rights under section 72 of the repealed Constitution.
  8. The dissenting court departed with the position of the majority that beyond the issues framed and considered to be of general public importance, the appellant was not at liberty to reopen his appeal beyond the parameters pursuant to those admitted. The appellant was held without a trial during the administration of former President Moi. Kenyan courts had upheld the Bill of Rights enshrined in the repealed Constitution and the Constitution of Kenya, 2010 as a non-negotiable covenant that could not be legislated away. Kenyan courts had determined that detention without trial, orchestrated by the State against its critics amounted to the egregious violation of the personal liberties of the detainees. The victims of the said detentions had over the years, successfully sought recompense from the courts long after the reign of the aforesaid regime came to an end. The instant case should not be any different
  9. Ordinarily, once a party elected to file their appeal under article 163(4)(b) of the Constitution as concerning general public importance then the they would not have the option of arguing matters under article 163(4)(a) as raising the application or interpretation of the Constitution. However, what instigated the appeal before the Supreme Court was the appellant’s High Court Constitutional and Judicial Review Petition No. 625 of 2009. It was for the court to relook at the viability of the High Court petition that stood dismissed by the Court of Appeal.
  10. What the court looks out for before certification was whether an issue transcended the circumstances of a case and had a bearing on the general public or public interest. Though the court owed the general public resolution of the issue of general public importance, the court, as the apex and the court of last resort, still bore a duty to the parties before it to help them resolve their issues and grant effective remedies. The Supreme Court had previously resolved and issued reliefs in the following cases certified as involving matters of general public importance. In order to arrive at justiciable and appropriate remedies, the Supreme Court may reexamine factual findings by the superior courts to determine their suitability. The duty was more pertinent where there were historical human rights violations.
  11. appellant elected to sue only the late President Moi in his capacity as not only the former president but also his former business partner. He failed to enjoin the Attorney General or the State in whatever capacity.
  12. arties were bound by their pleadings and the Supreme Court was bound to resolve the case as presented by the parties. Nevertheless, the failure to enjoin the State or the Attorney General was not fatal to the appellant’s claim. According to the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2006, it was not a requirement that in Constitutional cases the Attorney General had to be a respondent. Rule 15 under Part III on enforcement jurisdiction provides that The petition was to, in a criminal case, be served on the Attorney General and in a civil case, on the respondent, within seven days of filing. Remedies for violation of fundamental rights and freedoms under the repealed Constitution were available against private individuals. There was nothing in law that barred the appellant from suing the later former President as a private citizen.
  13. issue before the superior courts was whether the appellant’s fundamental human right to liberty was deprived as a consequence of the actions of the 1st respondent and whether as a result of such deprivation of liberty the appellant suffered loss in his business. The two were so intricately interconnected that to apply the principle of Salomon v A Salomon and Co Ltd [1897] AC 22 (principle of separate legal personality of a company) would be to defeat the purpose and intent of the Bill of rights guaranteed in the Constitution.
  14. here there were human rights violations by the state, or by persons utilizing state machinery, victims of such violations had their access to vital information hampered. That was often done in order to curtail the victim’s ability to effectively pursue challenges in court. It was why several international human rights bodies had recognized, in a general sense, the merits of allocating the burden to the state where the state had greater access to information. That inequality in access to information was what informed the need for the Supreme Court to take judicial notice of incidents that had drawn widespread press coverage nationally and internationally as well as condemnation across the globe as a matter of general notoriety.
  15. may be time to have the discussion regarding strictly holding petitioners to the burden and standard of proof in cases of human rights violations where the state actor or persons using state machinery deliberately ensure that their victims’ access to information and evidence was severely curtailed. It would be illogical to strictly hold the appellant to the burden and standard of proof, given that the alleged realization of various properties was carried out during the time he was held in detention. The 1st respondent elected not to contest the appellant’s factual claims. Further, even after being released, admittedly he was not able to gain access to all the necessary documents to prove his claim. However, the appellant was able to gather and submit to the High Court vide affidavit.
  16. The appellant’s detention order was issued by the Minister in Charge of Internal Affairs. During the time the 1st respondent was the President of Kenya, the office of the Minister of Internal Security was domiciled in the Office of the President. The dissenting court took judicial notice that during the time of the appellant’s detention, it was well recorded that President Moi was all powerful and had control over that branch of government. His was a dictatorial state. Further, it was well documented that former President Moi used arrests and detention without charge to repress his opponents and deemed adversaries in the years following the attempted coup in 1982 as well as throughout the struggle for multiparty politics. Many people had shared accounts of being subjected to cruel treatment, humiliation, and appalling conditions. History was further checkered with the powers that the President had under the Preservation of Public Security Act (repealed). From the recorded history it would be reasonable to believe the appellant’s account that the former President was not only involved but was the author of his detention for a period over three (3) years.
  17. The appellant had sought to dissolve his business entities with the former President but the former President was opposed to the idea. Any disputes regarding the business relations between the appellant and the 1st respondent could have been resolved in civil court as civil matters. However, before the matter could be resolved, the appellant was detained under the Preservation of Public Security Act (repealed), without trial and for an indefinite period of time. During which time, the properties of the various companies were sold off without the appellant’s involvement and without accounting for the same.
  18. The appellant’s detention order was signed by the Minister of Internal Security. However, there was no reason to believe that the said detention was carried out for the purposes laid down in the Preservation of Public Security Act (repealed).
  19. Civil proceedings cannot be instituted in any court against the President or the person performing the functions of the office of the President during their tenure of office in respect of anything done or not done under the Constitution of Kenya 2010. Once a person ceased to be a president, they lost immunity and became liable for their actions and omissions. That position was no different from section 14 (2) of the repealed Constitution.
  20. he court was able to find that it was difficult to explicate the President’s hand in commencing the constitutional amendment process and the use of the powers of the office to do so. So too in the instant case, it is difficult to explicate the role of former President Moi in the appellant’s detention in 1982 and subsequent realization of various properties in companies both he and the appellant were shareholders during the time of the appellant’s detention. The Minister of Internal Security could not have detained the appellant, the former President’s business partner, for three years and the former President to have not been aware. Given that several properties were realized in that time. The authority the President had at the time, the nexus created by the detention order, the resultant interference of the appellants person liberty and the deprivation of his right to property were too glaring the dissenting court to turn a blind eye.
  21. ue to his detention, the appellant was not able to gain access to all the necessary documents to prove his case. However, he was able submit an affidavit that proved the sale of three properties for approximately 108 million Kenya Shillings.
  22. was difficult to award damages in cases of constitutional violations; it was not as straightforward as in tortious or civil liability claims. The parameters for consideration when assessing damages for constitutional violations were:
    1. he duration of the claimant’s detention;
    2. he level of physical and mental suffering endured by the claimant;
    3. he degree of responsibility of the individual(s) responsible for the suffering caused to the claimant;
    4. the extent of the action or inaction complained of, and any other incidental rights that may have been violated as a consequence of the first breach(es);
    5. ward was discretionary and would depend on the facts and the circumstance of each case; and,
    6. ward was not compensatory or punitive but a vindication of the violated rights.
Dissenting court would have allowed the petition.
Orders Per MK Ibrahim, SCJ (Dissenting)
  1. Declaration issued to the effect that a habeas corpus application did not bar a litigant from pursuing the available legal remedies and the same did not determine the legality or otherwise of an individual’s arrest and detention under the Preservation of Public Security Act
  2. eclaration issued to the effect that a President enjoyed immunity from personal omissions and illegalities attributed to him during his tenure of office, once he/she ceased to be a president and he/she was liable.
  3. eclaration issued that the petitioner was entitled to damages and interest owing to the loss of business incurred as a result of his detention
  4. he judgment rendered by the Court of Appeal was set aside.
  5. rder issued partially reinstating the judgment and order of the High Court to the effect of awarding compensation for the deprivation of the appellant’s liberty a sum of Ksh. 5 million and for the deprivation of his property a sum of Ksh. 27,541,720/- as against the 1st respondent’s estate.
  6. Interest on the awards of Ksh. 5 million and Ksh. 27,541,720/- at court rates of 12% p.a. from the date of the Judgment of the High Court issued on April 6, 2011.
Per NS Ndungu, SCJ (Dissenting)
  1. writ of habeas corpus could bar any further proceedings once it had been granted or denied. The finding by High Court that the appellant’s detention violated his rights under section 72 of the repealed Constitutionwas proper. The Court of Appeal erred by finding otherwise.
  2. The second dissenting court concurred with the majority in that it was impossible for a court to determine the lawfulness of the said detention and that it was undeniable that the deceased was detained without trial under the regime of former President Moi. However, the majority, even when coming to the above conclusion, could not grant the appellant the reliefs sought. The reasons given were that the appeal was admitted only on the basis of the two issues certified and formulated by the Court, under article 163 (4)(b) of the Constitution. Secondly, because it was determined that the appellant elected to sue only the late President Moi in his capacity, as not only the former president but also as his former business partner, and that he failed to sue or seek joinder of the Attorney General or the State in the suit. The Majority, found it difficult to apportion liability and compensatory relief, against a person or agency that had never been a party to the proceedings. It was at that juncture, that the second dissenting court disagreed with the majority.
  3. The Supreme Court ought to deny the appellant effective reliefs because he elected to pursue the appeal as a matter of general public importance (GPI) as opposed to one of application or interpretation of the Constitution. Having agreed with the High Court, that the deceased’s right to personal liberty was violated consequent upon his detention without trial, the Supreme Court ought to find a viable relief.
  4. The Supreme Court certified the instant matter as one of GPI. Rightly so because it touched on the conduct, culpability, and liability of a former head of State for matters (detention) arising in the course of his term and was therefore of immense public interest. In addition, it had ramifications on the rights of persons to pursue redress on the legality or otherwise of detentions, especially under applications for habeas corpus.
  5. In the instant matter, the Supreme Court, as the apex and the Court of last resort, bore a duty to the parties before it to help them resolve their issues and grant effective remedies. That was especially so in circumstances where a litigant was disadvantaged by factors outside his or her control. It was not in the interests of justice to deny effective remedies to an appellant who has exercised all due diligence in pursuit of his cause and led the court to the finding that his/her rights to personal liberty had been violated.
  6. The repressive nature of an autocratic and powerful presidency and authoritarian regime in the late 1980’s led to many arbitrary arrests, detentions, and other related constitutional violations. However, now under the new transformative Constitution of Kenya, 2010. The Supreme Court could not shut its eyes to the fact that the detention as evidenced, violated the deceased’s right to personal liberty. Such detention caused a huge financial, social, and emotional cost to family members of such incarcerated people. Illegal detention had a negative impact on society. The court must recognize and ensure that the general welfare of the public was protected. Seeing as there was a clear nexus between the act of detention and the resultant loss of property, the second dissenting court would have extrapolated the parameters for consideration when assessing damages for the deceased’s constitutional violations.
  7. Once established that the deceased’s right to personal liberty was violated consequent upon his detention without trial, the Supreme Court ought to have come to his aid whether or not Attorney General or the State in the suit were parties to the suit, and provided effective remedies. That view was also buttressed by the legal regime pre-2010: Remedies for violation of fundamental rights and freedoms under the repealed Constitution were available against private individuals.
  8. The issue before the superior Courts was whether the appellant’s fundamental human right to liberty was deprived as a consequence of the actions of the 1st respondent and whether as a result of such deprivation of liberty the appellant suffered loss in his business. Those two were so intricately interwoven that to apply the principle of Salomon v A Salomon and Co Ltd [1897] AC 22 (principle of separate legal personality of a company) would be to defeat the purpose and intent of the Bill of rights guaranteed in the Constitution.
  9. The appellant was able to prove, at the High Court, to some extent, the sale of various properties and compensation he received and what was owed. That allowed the High Court to compute and award him what would have been his share of the proceeds.
  10. It was important for the State to be consistently aware that past conduct of its officials and agents would no longer remain unpunished. Kenya must not return to those dark days. The Supreme Court should always be a temple of justice for victims of historical injustices and justice must be seen to be done in the eyes of the victim.

Second dissenting court would have allowed the petition.

Orders Per NS Ndungu, SCJ (Dissenting)

  1. Declaration issued that a habeas corpus application did not bar a litigant from pursuing the available legal remedies and the same did not determine the legality or otherwise of an individual’s arrest and detention under the Preservation of Public Security Act (repealed).
  2. Declaration issued that the petitioner was entitled to damages and interest owing to the loss of business incurred as a result of his detention.
  3. The entire judgment of the Court of Appeal would have been set aside.
  4. The judgment and order of the High Court of Kenya at Nairobi would have been partially reinstated awarding compensation for the deprivation of the appellant’s liberty at a sum of Ksh. 5 million and for the deprivation of his property a sum of Ksh. 27,541,720.
  5. Interest on the awards of Ksh. 5 million and Ksh. 27,541,720/- at court rates of 12% p.a. from the date of the Judgment of the High Court issued on April 6, 2011 would have been granted.
  6. The 1st respondent would bear the appellant’s costs.


Kenya Law
Case Updates Issue 026/23-24
Case Summaries

JURISDICTION

The guiding principles for the review of a decision of the Supreme Court

Headnote:The application sought the review and setting aside the order issued by a single judge of the court marking a notice of appeal as withdrawn. The court highlighted the guiding principles for review of a decision of the court made in exercise of discretion.

Kabuito Contractors Ltd v Attorney General (Civil Application E025 of 2023) [2023] KESC 89 (KLR) (Civ) (6 October 2023) (Ruling)
Neutral citation: [2023] KESC 89 (KLR)
Supreme Court of Kenya
PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & W Ouko, SCJJ
October 6, 2023
Reported by Kakai Toili
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Jurisdiction – jurisdiction of the Supreme Court – jurisdiction to review the decision of a single judge of the court - What were the guiding principles for review of a decision of the Supreme Court made in exercise of discretion - Supreme Court Act, No 7 of 2011, section 23(C).

Brief facts:
The application sought the review and setting aside of the order of May 26, 2023 by a single judge of the court (the judge) marking the notice of appeal dated March 8, 2023 from the decision of the Court of Appeal in Civil Appeal No. 638 of 2019, Attorney General v Kabuito Contractors Ltd as withdrawn. The applicant contended that on March 10, 2023, it filed a notice of appeal before the instant court evincing his intention to appeal against the decision of the Court of Appeal. The applicant further contended that the matters in dispute were of general public importance.
The applicant stated that it filed an application for certification dated March 31, 2023 at the Court of Appeal and that by May 22, 2023 the Court of Appeal had not issued directions on the application for certification. The applicant further averred that on May 26, 2023, the court (the judge) issued an order deeming the notice of appeal filed before the court withdrawn for failure to file an appeal within the period stipulated by the Supreme Court Rules.

Issue:

  1. What were the guiding principles for review of a decision of the Supreme Court made in exercise of discretion ? Read More..

Relevant provisions of the law
Supreme Court Rules, 2020
Rule 36 - Notice of Appeal
(1) A person who intends to make an appeal to the Court shall file a notice of appeal within fourteen days from the date of judgment or ruling which is the subject of appeal.
(4) In lodging an appeal on a matter of general public importance, it shall not be mandatory to obtain such certification before filing the notice of appeal.,

Rule 38 - Institution of appeal
(1) An appeal to the Court shall be filed within—
(a) thirty days of the date of filing the notice of appeal, where the appeal is as of right; or
(b) thirty days after the grant of certification, where such certification is required.

Held:

  1. Section 23(C) of the Supreme Court Act conferred upon the court the jurisdiction to review the decision of a single judge by five or more judges, upon application by a party aggrieved by the decision of a single judge. The guiding principles for review of a decision of the court made in exercise of discretion were that the applicant had to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise of discretion and;
    1. as a result a wrong decision was arrived at; or
    2. it was manifest from the decision as a whole that the judge had been clearly wrong and as a result, there had been an apparent injustice.
  2. The applicant contended that the order of May 26, 2023 deeming the notice of appeal as withdrawn was made by the single judge, unaware of the pending certification application at the Court of Appeal. The court had discretion under rule 46(1) of the Supreme Court Rules, 2020 on its own motion, or on application by any party, to make such orders as may be necessary in instances where a party lodged a notice of appeal but failed to institute the appeal within the prescribed time.
  3. The applicant had not satisfactorily demonstrated that the judge misdirected himself in the exercise of the powers conferred under rule 46(1) of the Supreme Court Rules. It was not manifest from the decision that the judge was wrong and as a result, there had been an apparent injustice. Although the applicant had attached a notice of appeal and an application for certification at the Court of Appeal, there was no evidence that the notice, though filed, was lodged before the Registrar of the Court of Appeal or that the application for certification filed at the Court of Appeal was eventually lodged.
  4. The applicant made no attempt to justify the continued existence of the notice of appeal on the court’s record for a period outside that permitted by rules 36 and 38 of the Supreme Court Rules. The belated explanation by the applicant did not suffice at that late stage. In any event, if the application before the Court of Appeal succeeded -if it existed at all- the applicant would have sufficient time to move the court under the relevant rule and if it did not succeed, the procedure for review of that decision was available to the applicant. The notice of appeal was deemed as withdrawn.

Application dismissed; no orders as to costs.

CIVIL PRACTICE AND PROCEDURE

Principles to determine whether a matter was of general public importance

Headnote: The application sought the certification and leave to appeal to the Supreme Court against the judgment of the instant court. The court held that to succeed in an application for certification under article 163(4)(b) of the Constitution, an applicant had to demonstrate that the issue to be raised in the intended appeal involved a matter of general public importance the determination of which transcended the circumstances of the particular case, and had a bearing on the public interest. The court further highlighted the principles to determine whether a matter was of general public importance. The court finally stated that the issue surrounding battered women syndrome was ideally raw in Kenya and that the same should be given a window for interrogation by the Supreme Court.

Kamande v Republic (Criminal Appeal (Application) 102 of 2018) [2023] KECA 1239 (KLR) (6 October 2023) (Ruling)
Neutral citation: [2023] KECA 1239 (KLR)
Court of Appeal at Nairobi
MSA Makhandia, AK Murgor & S Ole Kantai, JJA
October 6, 2023
Reported by Kakai Toili


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Civil Practice and Procedure – appeals – appeals to the Supreme Court – appeals in matters certified as involving matters of general public importance - principles to determine whether a matter was of general public importance - what were the factors to consider in an application for certification of a matter as of general public importance warranting an appeal to the Supreme Court -Constitution of Kenya, 2010, article 163(4)(b).

Brief facts:
The application sought the certification and leave to appeal to the Supreme Court against the judgment of the instant court. The applicant was charged, tried and convicted for the offence of murder. The applicant was sentenced to death by the trial court after rejecting her defence of self-defence. The instant court dismissed the appeal. It was upon dismissal of the appeal that the applicant filed the instant application. The applicant claimed that her intended appeal to the Supreme Court would raise questions of general public importance and as such she should be granted leave to appeal to the Supreme Court.
The application was based on the grounds on the face of the motion which inter alia, included that: the intended appeal involved a matter of general public importance being the doctrine of battered women syndrome, and the standard and burden of proof applicable when an accused pleaded self-defence. The applicant argued that the two issues transcended the circumstances of the particular case and would ideally have a significant bearing on the public interest to protect and advance the rights of domestic violence victims in line with the provisions of the Protection against Domestic Violence Act.

Issues:

  1. What were the principles to determine whether a matter was of general public importance ?
  2. What were the factors to consider in an application for certification of a matter as of general public importance warranting an appeal to the Supreme Court? Read More..

Held:

  1. To succeed in an application for certification under article 163(4)(b) of the Constitution of Kenya, 2010 (the Constitution), an applicant had to demonstrate that the issue to be raised in the intended appeal involved a matter of general public importance the determination of which transcended the circumstances of the particular case, and had a bearing on the public interest. Where the matter in respect of which certification was sought raised a point of law, the intending appellant must demonstrate that such a point was a substantial one, the determination of which would have a significant bearing on the public interest.
  2. A matter of general public importance warranting the exercise of the appellate jurisdiction would be a matter of law or fact, provided only that: its impact and consequences were substantial, broad-based, transcending the litigation-interests of the parties, and bearing upon the public interest. As the categories constituting the public interest were not closed, the burden fell on the intending appellant to demonstrate that the matter in question carried specific elements of real public interest and concern.
  3. The principles to determine whether a matter was of general public importance included:
    1. For a case to be certified as one involving a matter of general public importance, the intending appellant must satisfy the court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case, and had a significant bearing on the public interest;
    2. where the matter in respect of which certification was sought raised a point of law, the intending appellant must demonstrate that such a point was a substantial one, the determination of which would have a significant bearing on the public interest;
    3. such question or questions of law must have arisen in the court or courts below, and must have been the subject of judicial determination;
    4. where the application for certification had been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;
    5. mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, was not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of article 163(4)(b) of the Constitution;
    6. the intending applicant had an obligation to identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought;
    7. determination of facts in contests between parties were not, by themselves, a basis for granting certification for an appeal before the Supreme Court.
  4. From a look at the issues that had been raised by the applicant, the issue surrounding battered women syndrome was ideally raw in Kenya and there were not so many decisions on the same. The same should be given a window for interrogation by the Supreme Court.

Application allowed.