The use of lethal force for law enforcement purposes was an extreme measure that should be resorted to only when strictly necessary to protect life or prevent serious injury from an imminent threat
Headnote: the main issue involved a claim that the shooting of a foreign national and failing to investigate that shooting or to offer his family remedies was a violation of the right to expeditious and fair administrative action. The court held that failure to conduct independent, prompt and effective investigations and commence prosecution or to complete those investigations or in any other manner act on the outcome of those investigations by the respondents violated the positive obligation to investigate and prosecute violations of the right to life, torture, inhuman and degrading treatment.

Javeria Siddique w/o Arshad Sharif & 2 others v Attorney General & 4 others (Constitutional Petition E009 of 2023) [2024] KEHC 9667 (KLR) (8 July 2024) (Judgment)
Neutral citation: [2024] KEHC 9667 (KLR)
High Court at Kajiado
SN Mutuku, J
July 8, 2024
Reported by Robai Nasike Sivikhe
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Constitutional Law – fundamental rights and freedom – the right to access to information – limitation of the right to access to information – where information regarding investigation of a victim of shooting by Kenya Police, was required from the Director of Public Prosecution and Independent Policing Oversight Authority – where information was classified as privileged, by the required government entities – whether the failure to provide requisite information regarding the shooting of a foreign national by the Kenya Police, was a violation of the right to access to information – whether failure to conduct independent, prompt and effective investigations and act on the outcome of those investigations by the respondents violated the positive obligation to investigate and prosecute violations of the right to life, torture, inhuman and degrading treatment –Constitution of Kenya, 2010, articles 24, 26, 27, 28, 29, 35 (1), 47 and 246; Access to Information Act, section 6

Brief Facts:
The 1st petitioner, the wife of the deceased who was described in the petition as a prominent Pakistani Investigative Journalist sued the respondents in their capacities as constitutional offices in their areas of operation. It was stated that the deceased was shot by officers from the Kenya Police. It was the petitioner’s case that the actions of the officers of the National Police Service in their excessive, arbitrary, unreasonable and lethal use of force and unlawful killing of the deceased violated legal provisions that shielded every person from arbitrary deprivation of the right to life and invasion of their bodily integrity. The shooting of the deceased violated his entitlement to equal benefit and protection of the law.
It was the petitioner’s case that the shooting of the deceased and failing to investigate that shooting or to offer his family remedies was a violation of the right to expeditious and fair administrative action. The petitioners argue that the omission by the 3rd, 4th and 5th respondents to initiate disciplinary action against the police officers who unlawfully killed the deceased violated Article 244(a) of the Constitution requiring the National Police Service to meet the highest standards of professionalism and discipline among its members and Article 246(3) of the Constitution that gave the NPSC disciplinary control over persons holding or acting in offices within the Service. The petitioners held the respondents liable jointly and severally for the acts of the police officers who were acting in the cause of duty.

Issues:
  1. Whether the failure to provide requisite information regarding the shooting of a foreign national by the Kenya Police, was a violation of the right to access to information.
  2. Whether failure to conduct independent, prompt and effective investigations and act on the outcome of those investigations by the respondents violated the positive obligation to investigate and prosecute violations of the right to life, torture, inhuman and degrading treatment.
Held:
  1. In performing their functions, the respondents were obligated to respect, uphold and defend the Constitution as commanded by Article 3 the Constitution. Further, the national values and principles of governance in Article 10 bound the respondents whenever they were applying, interpreting the Constitution or implementing public policy decisions.
  2. The shooting incident that gave rise to the petition occurred on October 23, 2022. The petitioners were forced to file the petition on October 24, 2023, a year after the shooting incident, because no information was forthcoming to the 1st petitioner regarding the update of the status of the investigations or any action taken against the perpetrators of the shooting. There was no evidence that the letters from the petitioner, addressed to the 4th respondent and the 2nd respondent, were responded to or the information sought in those letters provided to the petitioners.
  3. Save for stating that the information sought by the petitioners was privileged, the 2nd and 4th respondents did not adduce any evidence to show in what manner the information they possess after the investigations was privileged. Even assuming that the information was protected by the law as claimed, the respondents, especially the 2nd and 4th, ought to have given updates to the family of the deceased regarding the information gathered during investigations into the circumstances surrounding the fatal shooting of the deceased, which was not disputed, and any anticipated further action if need be, in the matter. By their actions in failing to provide the required information, the respondents violated the rights of the petitioners.
  4. The petitioners pleaded with precision and specificity the rights and freedoms said to have been violated by the respondents. The deceased was a foreign national and the circumstances of his shooting, as far as could be discerned from the material placed before the court, was being discussed at high government levels involving some of the respondents, the Ministry of Foreign Affairs and the Pakistani High Commission. It was imprudent on the part of the respondents to keep the petitioners, especially the family of the deceased, in the dark without updates of the progress of the investigations and the outcome of that investigation.
  5. By shooting the deceased in the circumstances disclosed in the petition and which shooting had been admitted save for the allegation that it was mistaken identity, the respondents violated the rights of the deceased under Articles 26, 27, 28 and 29 of the Constitution. The 1st respondent could not escape responsibility by claiming that the functions of that office exempt that office from any responsibility in the matter. The 1st respondent’s functions under section 5 (1) included advising Government Ministries, Departments, constitutional commissions and State Corporations on legal matters and on all matters relating to the Constitution, international law, human rights, and in facilitating, promoting and monitoring the rule of law, the protection of human rights and democracy, especially in a matter like the instant one.
  6. The 3rd respondent had the responsibility to act on the recommendations of the Independent Policing Oversight Authority, including compensation to victims of police misconduct. The 3rd respondent, too, could not escape responsibility. In the same breath, the 5th respondent could not escape responsibility by virtue of Article 246 of the Constitution that commanded that office to observe due process, exercise disciplinary control over and remove persons holding or acting in offices within the Service.
  7. Failure to conduct independent, prompt and effective investigations and commence prosecution or to complete those investigations or in any other manner act on the outcome of those investigations by the respondents violated the positive obligation to investigate and prosecute violations of the right to life, torture, inhuman and degrading treatment.
  8. The petitioners have met the threshold in a constitutional proceeding. The rights of the deceased as pleaded were violated and each respondent had a role to play to ensure that the petitioners, specifically the 1st petitioner, was updated on the status and outcome of the investigations and what action, if any, was being taken or was likely to be taken to bring culprits to book. The petitioners’ right under Article 47 of the Constitution was violated.
  9. Compensation was an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution. It was self evident that the assessment of compensation for an injury or loss, which was neither physical nor financial, presented special problems for the judicial process, which aimed to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity were incapable of objective proof or of measurement in monetary terms. A global award of Kshs 10,000,000 was an appropriate award for compensation.
Petition allowed.
Orders
  1. Declaration issued that the use of lethal force for law enforcement purposes was an extreme measure that should be resorted to only when strictly necessary to protect life or prevent serious injury from an imminent threat; that the intentional taking of life by police officers was permissible only if it was strictly necessary to protect life from an imminent threat and that the use of lethal force against Arshad Sharif by shooting him on the head was arbitrary, unproportionate, unlawful and unconstitutional.
  2. Declaration issued that the unlawful shooting to death of Arshad Sharif by the Kenyan police officers at Kajiado County, Kenya on October 23, 2022 violated his right to life under Article 26 of the Constitution; right to equal benefits and protection of the law under Article 27 of the Constitution; right to dignity under Article 28 and right to security of the person under Article 29 of the Constitution.
  3. Declaration issued that the petitioners were entitled to effective remedies as guaranteed by Article 23 of the Constitution; Article 2(3) of the ICCPR; Article 14 of CAT and Article 7(1) of the Banjul Charter for the violations of Arshad Sharif’s fundamental rights and freedoms through the unlawful and admitted shooting of Arshad Sharif by the Kenyan Police officers at Kajiado County on October 23, 2022.
  4. Declaration issued that failure to conclude the conduct of independent, prompt and effective investigations and to take appropriate action including prosecution of the perpetrators of the fatal shooting of Arshad Sharif, if found culpable, further violated the positive obligation to investigate and prosecute violations of the right to life, torture, inhuman and degrading treatment under Article 21(1) of the Constitution, Article 6 and 7 of CAT; Article 2 and 7 of the ICCPR.
  5. Declaration issued that Article 244(a) and 246(3) of the Constitution commanded the respondents to take appropriate actions, including to punish and prosecute police officers who killed Arshad Sharif, if found culpable. Consequently, a mandatory order was issued compelling the respondents to conclude investigating, take appropriate action including disciplinary action and prosecution of the police officers who shot and killed Arshad Sharif at Kajiado County Kenya on October 23, 2022 if found culpable.
  6. Declaration issued compelling the Respondents to supply the petitioners with the update of the status of the investigations and the recommendations the respondents, especially the 2nd and the 4th respondents, had arrived at in regard to the appropriate action to be taken at the conclusion of the investigations.
  7. Judgment entered in favour of the 1st petitioner against the respondents jointly and severally for a global sum of Kshs 10,000,000/= by way of general damages, which sum shall attract interest at court rates from the date of filing the petition until payment in full.
  8. Costs of the petition.


Kenya Law
Case Updates Issue 009/24-25
Case Summaries
CIVIL PRACTICE AND PROCEDURE Case on the jurisdiction of the Employment and Labour Relations Court over disputes involving the recruitment and appointment of county officers did not raise issues of general public importance, meriting certification for an appeal to the Supreme Court

Headnote: The application sought a review of the Court of Appeal's decision which declined to certify an appeal as raising issues of general public importance. The Supreme Court held that the ELRC's jurisdiction was limited to disputes between employers and employees as provided under article 162 of the Constitution and section 12 of the ELRC Act. The recruitment process of county officers did not fall within that category.

Odongo v Clerk, Nakuru County Assembly & 5 others (Application E053 of 2023) [2024] KESC 29 (KLR) (Civ) (28 June 2024) (Ruling)
Neutral citation: [2024] KESC 29 (KLR)

Supreme Court of Kenya
MK Koome, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, NS Ndungu & I Lenaola, SCJJ

Reported by John Ribia

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Civil Practice and Procedure – – appeals – appeals to the Supreme Court – whether the case on the jurisdiction of the Employment and Labour Relations Court over disputes involving the recruitment and appointment of county officers raised issues of general public importance, meriting certification for an appeal to the Supreme Court - Constitution of Kenya, 2010 articles 159, 162, 163(4) and (5); Supreme Court Act (Cap 9B) section 15(b); Supreme Court Rules, 2020 (Cap 9B Sub Leg) rule 33(2,3)

Jurisdiction – – jurisdiction of the Employment and Labour Relations Court – jurisdiction to determine involving the recruitment and appointment of county officers - whether the Employment and Labour Relations Court had jurisdiction over disputes involving the recruitment and appointment of county officers - Constitution of Kenya, 2010 articles 159, 162, 163(4) and (5); Employment and Labour Relations Court Act (cap 8E) section 12

Brief Facts
The applicant sought the Supreme Court's intervention after the Court of Appeal declined to grant certification of an appeal. The underlying dispute revolved around the recruitment of 21 Chief Officers of Nakuru County by the respondents. The Employment and Labour Relations Court (ELRC) initially took jurisdiction over the matter, but the Court of Appeal later found that the ELRC had overstepped its jurisdiction, as the dispute did not fall within the scope of employer-employee relationships outlined in article 162 of the Constitution and section 12 of the ELRC Act.
The applicant contended that the recruitment and appointment process of county officers, and the interpretation of related constitutional and statutory provisions, were matters of general public importance requiring further clarification from the Supreme Court.

Issues:

  1. Whether the case on the jurisdiction of the Employment and Labour Relations Court over disputes involving the recruitment and appointment of county officers raised issues of general public importance, meriting certification for an appeal to the Supreme Court.
  2. Whether the Employment and Labour Relations Court had jurisdiction over disputes involving the recruitment and appointment of county officers.

Held:

  1. The ELRC's jurisdiction was limited to disputes between employers and employees as provided under article 162 of the Constitution and section 12 of the ELRC Act. The recruitment process of county officers did not fall within that category. A dispute falling within the purview of the ELRC should emanate from an employee-employer relationship and/or affect its status. That was different from the High Court, which had unlimited jurisdiction in civil and criminal matters while the specialized courts under article 162 of the Constitution were limited in terms of their jurisdiction and the persons who might approach it. The Court of Appeal decision correctly interpreted the provisions of section 12 of the ELRC Act.
  2. The statutory provisions under the County Governments Act were correctly interpreted by the lower courts, and no substantial point of law was raised that required constitutional interpretation by the Supreme Court.
  3. The issues raised did not meet the threshold for certification as matters of general public importance, as there were no conflicting decisions or substantial points of law that required the Supreme Court's intervention.

Application dismissed, each party was ordered to bear their own costs.
FAMILY LAW

A dispute of where a deceased person is to be buried would be determined based upon the proximity of the disputing parties to the deceased.

Headnote:The High Court addressed a burial dispute between two co-wives, each seeking the right to bury their husband at their respective homesteads. The trial court ruled in favor of the first wife under Luhya customary law (kabras sub-tribe), but the second wife appealed, relying on the deceased's alleged will. The High Court held that the deceased's proximity to the second wife in his final years, coupled with legal proximity, granted her the right to bury him. The appeal was allowed, setting aside the trial court’s judgment.

Imbogo v Imbogo (Civil Appeal E030 of 2023) [2023] KEHC 24707 (KLR) (26 October 2023) (Judgment)
Neutral citation: [2023] KEHC 24707 (KLR)
High Court at Kakamega
S Chirchir, J

Reported by John Ribia

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Family Law – burial of deceased – dispute between two wives on where to bury their husband – customary law vis-à-vis the in a dispute between two wives on where to bury their husband, who between the two parties had the right to bury the deceased – what was the doctrine of legal proximity - whether the wishes of the deceased on the manner, method and place they wanted to be buried were binding - whether old age was a reflection of expertise in the customs and practices of a tribe - whether a dispute of where a deceased person was to be buried would be determined based upon the proximity of the disputing parties to the deceased
Civil Practice and Procedure – appeals – documents accompanying appeal – decree – failure to file decree - whether the legal consequence of filing of a judgment in an appeal was equivalent to filing a decree - whether an appeal could be held to be defective for failure to file the trial court’s decree - Civil Procedure Act (Cap 21) section 2, 27, 34,79B, and 91; Civil Procedure Rules, 2010 (Cap 21 Subleg) order 42 rules 2; 13 (4) (f)

Brief facts:
The parties were co- wives and widows of the deceased. The respondent was the first wife, while the appellant was the second. They had a dispute on where to bury the deceased, with each wife preferring a different location. The respondent had based her right to bury the deceased on the customary law of the Kabras sub-tribe of the Luhya. The respondent argued, and quite correctly, that burial disputes have traditionally been governed by customary law. At the trial court, the court held that customary law would apply and the respondent, the first wife, was granted the liberty to bury the deceased at the location she preferred.
Aggrieved, the appellant filed the instant appeal. She preferred that the deceased had expressed his wish through a written will.

Issu es:

  1. Whether the legal consequence of filing of a judgment in an appeal was equivalent to filing a decree.
  2. Whether an appeal could be held to be defective for failure to file the trial court’s decree.
  3. What was the doctrine of legal proximity?
  4. In a dispute between two wives on where to bury their husband, who between the two parties had the right to bury the deceased?
  5. Whether the wishes of the deceased on the manner, method and place they wanted to be buried were binding?
  6. Whether old age was a reflection of expertise in the customs and practices of a tribe.
  7. Whether a dispute of where a deceased person was to be buried would be determined based upon the proximity of the disputing parties to the deceased.

Held:

  1. Order 42 rules 2 of the Civil Procedure Rules provided that where no certified copy of the decree or order appealed against was filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such a time as the court may order. The court need not consider whether to reject the appeal summarily under section 79B until a copy was filed. A decree was defined under section 2 of the Civil Procedure Act as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it included the striking out of a plaint and the determination of any question within section 34 or section 91 but did not include any adjudication from which an appeal lay as an appeal from an order; or any order of dismissal for default; provided that, for the purposes of appeal, decree included judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.
  2. The proviso to section 2 of the civil procedure Act was to the effect that for purposes of appeal a copy of the judgment was as good as a decree. Order 42 rule 2 was by way of subsidiary legislation, which in no way could override the provisions of the statute. A decree was “a narrowed – down” definition of a judgment. The purpose of a decree was to inform the appellate court of what the trial court decided, in the matter under appeal. The judgment did that, and more. It was unnecessary and drastic to strike out an appeal on the basis of lack of a document, whose contents or import was ascertainable from another document, available on record. There was no prejudice occasioned to the respondent by failure to file the decree. Striking out the appeal would simply be to punish the appellant for her indolence, and nothing more. That was not to downplay the place of procedural law, but where procedure got in the way of substantive justice and only did so for the sake of it, then procedure must give way.
  3. In Kenya, to resolve burial disputes, the courts had variously resorted to customary law, common law, marriage law, succession law, human rights law, land law and other areas of personal law. Customary law was applied by dint of section 3(2) of the Judicature Act. The Constitution under article 11 recognized culture as the foundation of the Nation and as the cumulative civilization of the Kenyan people and Nation.
  4. Burial disputes had traditionally been governed by customary law. However, it was not enough to plead custom, it must be proved. Customary law, unlike statute or case law, was treated as a fact rather than a law. It was not codified or was in written form. It had to be established through evidence. It was absolutely necessary that experts versed in the customs be summoned to testify so as to assist the court reach a fair verdict since the court itself was not well versed in those customs and traditions. There was no evidence of an expert in Luhya customary law.
  5. The expertise of the two witnesses was not established. A detailed account of their expertise in Luhya customs ought to have been laid before they could be presented to court as expert witnesses. Custom could not be assumed.
  6. PW3 told the court he was 92 years old but he was never led in evidence to establish his expertise in Luhya customary law of burials. The age of a person was not necessarily a reflection of his expertise in the customs and practices of his people. The expertise of PW4 was not also established before giving evidence. The requirement that a Luhya man must be buried in his ancestral land was proved.
  7. Nevertheless, whether the deceased had left instructions on where to be buried and whether the will can allow for one to decide his burial place, there could be no property in a dead body. A person could not dispose of his body at will. After death the custody and possession of the body belonged to the executors until it was buried. If the deceased had left directions as to the disposal of his body, though these were not legally binding on his personal representative, effect should be given to his wishes as far as that was possible, the duty of disposing the body fell primarily on the executor.
  8. There was no indication of when the wishes were expressed, for the court to determine whether the said declarations met the criteria of an oral will. The appellant tabled sufficient evidence, that proved the deceased’s wishes on the preferred place of Burial.
  9. The doctrine of legal proximity was based on the assumption that the decision as to the determination of the place of burial was based upon proof by the parties in the dispute of their proximity to the deceased. The right to bury a dead body could only be conferred to the person who was able to demonstrate the closest proximity to the deceased.
  10. In the social context prevailing in Kenya, the person, who was in the first line of duty in relation to the burial of any deceased person, was the one who was closest to the deceased in legal terms. Generally, the marital union would be found to be the focus of the closest chain of relationships touching on the deceased. It was only natural that the one who could prove that fundamental proximity in law to the deceased, had the colour of right of burial, ahead of any other claimant.
  11. The wife was the closest in proximity to the husband, and therefore had the right to bury the deceased husband. The fact that both parties were the wives of the deceased was not contested and therefore one could argue that in terms of legal proximity, both parties herein qualified as the most approximate people.
  12. Customary law was dynamic. It was not codified. Its application was left to the good sense of the courts that were called upon to apply it. There was ample evidence showing that at least for the last 8 years of his life, the deceased spent his time mostly with his second wife, the appellant. The fact that she was the one who took care of him during his last days in hospital was not rebutted. The respondent’s own son testified about the fact that the respondent never visited the deceased in hospital and that testimony was not contested.
  13. The relationship of the deceased and the respondent was quite strained. Some feuds related to land made the deceased leave kabras and made his abode in Kitale. The respondent and the deceased had a land related dispute that was, at some point, going on in courts. The relationship was far from being cordial. Compared to the appellant, the respondent could not claim to have been the person at close proximity to the deceased at the time of his demise. The doctrine of legal proximity favoured the appellant.

Appeal allowed. The Judgment of the trial court was set aside and substituted with an order dismissing the plaintiff’s suit, with costs.