Sharma v Attorney General & 3 others [2025] KECA 1470 (KLR)
Delivered by DK Musinga, M Ngugi, GV Odunga
Background
Anjlee Parveen Kumar Sharma filed a constitutional petition after the fatal shooting of her husband, Bunty Bharat Kumar Shah, by police officers at their home in Westlands on 21st October 2017. She brought the petition as administrator of her late husband’s estate and as next friend of their minor son. She alleged violations of several constitutional rights, including the right to life, security, family and parental care. She sought declarations of State liability, damages running into hundreds of millions. The Attorney General(A.G), Inspector General of Police(I.G), and Director of Public Prosecution(DPP) opposed the petition. They argued that the case raised tortious rather than constitutional issues, secondly the petition failed the Mumo Matemu threshold of specificity, thirdly the CCTV evidence was inadmissible, and finally the matter was premature as investigations into the shooting were still ongoing. The court struck out the petition, though it urged State agencies to expedite investigations, noting five years had already passed without accountability.
Dissatisfied, Sharma appealed to Court of Appeal . She argued the High Court abdicated its duty, misapplied ripeness and justiciability, and wrongly held it lacked jurisdiction until after a criminal trial. She contended nothing in the Constitution requires victims’ families to await prosecutions before seeking constitutional relief. The AG(1st Respondent), IG(2nd Respondent), and DPP(3rd Respondent) defended the High Court’s ruling, insisting that premature judicial findings would encroach on investigative/prosecutorial mandates, compromise future trials, and violate separation of powers. The Court of Appeal after listening to the parties disagreed with the High Court. It held that State inaction and prolonged investigations (over six years) amounted to a continuing violation of rights under Articles 26 and 48 and victims are not required to await criminal trials to seek constitutional remedies and that the access to the High Court under Article 23 was direct and immediate where violations are alleged. The Court of Appeal therefore allowed the appeal and found the High Court erred in striking out the petition and clarified that constitutional remedies could proceed independently of criminal or civil proceedings.
Issues for Court Determination
The issues framed by Court of Appeal were first whether the trial court erred in law in holding that the petition was not justiciable, specifically on the ground that it was “hypothetical” or “academic” since investigations into the shooting were still ongoing and no criminal charges had yet been filed.The second issue considered by the court was whether the victims of criminal acts were entitled to pursue constitutional redress in courts even as police investigations on same violations were still ongoing and the final issue was whether, if the appeal were to succeed, the appellant would be entitled to remedies and, if so, what remedies ought to be awarded.
Court Determinations
The Court of Appeal first addressed the question of justiciability and ripeness. It rejected the High Court’s conclusion that the petition was premature merely because police investigations were ongoing and no criminal charges had been filed. The Court emphasized that the fatal shooting of the deceased by police officers was a completed event, not a hypothetical matter, and therefore capable of giving rise to immediate constitutional claims. It clarified that the doctrines of ripeness and justiciability prevented courts from handling abstract or speculative disputes, but they do not bar adjudication of confirmed violations of fundamental rights.
Secondly, the Court of Appeal considered the jurisdiction of the constitutional court under Articles 22, 23, and 165 of the Constitution. It held that the High Court had jurisdiction to determine whether State agents violated rights such as the right to life, dignity, security of the person, and access to justice, regardless of the status of police investigations or intended prosecutions. By declining jurisdiction until after a criminal trial, the High Court had conflated the role of constitutional petitions, which examined State responsibility for rights violations, with criminal trials, which established individual guilt. The Court underscored that constitutional remedies could not be postponed indefinitely while victims await prosecutorial decisions.
Lastly, on the issue of remedies, the Court distinguished between constitutional liability and criminal culpability. It affirmed that the constitutional court’s role is to determine whether rights were violated and to provide appropriate redress, while criminal courts determine individual guilt. Since liability of the State had been established, the Court held that the High Court erred , in light of the clear evidence before it, ought to have issued a declaration that the actions of the 1st, 2nd and 3rd respondents through their agents, servants, and persons working under their direction and/or instructions, in executing and killing the deceased, were unlawful, illegal and contrary to the Constitution; upon issuance of the said declarations, would have proceeded to assess and award appropriate damages. The Court of Appeal determined in the circumstances a re-hearing would cause unnecessary emotional distress to the appellant and her family and thus appropriate order was to remit the matter to the trial court solely for the assessment of damages to which the appellant is entitled.