Parties Fail to Reach a Settlement; Hearings Continue in Kenya Police Shootings Case

Three witnesses will testify in March next year on the issue of liability in a case involving 15 victims of police shootings in Kenya during a period of violence following the 2007 Kenyan presidential election.

Kisumu High Court Judge Fred Ochieng decided on Wednesday that the petitioners will call three witnesses to testify on who was liable for the harm the victims of police shootings suffered. Petitioners include victims directly harmed by the shootings, as well as relatives of people the police shot and killed. Judge Ochieng made this decision after lawyers for the petitioners and the government failed to reach a settlement out of court.

He also decided that lawyers for the government and an autonomous government agency, the Independent Police Oversight Authority (IPOA), will notify the court which of the 15 petitioners they wish to cross-examine.

On October 1, Judge Ochieng had encouraged the parties involved to reach a settlement, saying there was no dispute that police shootings took place following the December 2007 presidential election.

On Wednesday he asked the parties whether they had reached a settlement. Gerbera Qeu, litigation counsel in the Attorney General’s office, said he had received instructions just before he came to court on Wednesday that the government was willing to consider compensation.

He said, however, that the government side had not received any proposal from the petitioners quantifying the compensation they would expect. Que told the court he was also instructed that “the state did not want to discuss the issue of liability or non-liability.”

Mbugua Mureithi, who represents the petitioners, said there appeared “to be a small misunderstanding between us and the state.” He said the petitioners were not aware they were to present a proposal quantifying the compensation they expected. He said even if the petitioners were to present such proposal it could not be before the subject of liability had been addressed.

Judge Ochieng then asked the parties to discuss the issue further and see whether they could reach an agreement. The judge also asked Mureithi to take the time to explain to his clients what the government was proposing. He said he could see the government’s concern that if it admitted liability it could lead to an “avalanche” of suits, but the government was also indicating it would consider some form of compensation.

The judge said that if the parties were unable to agree, “then we will only go on (the issue of) liability.” He said he would listen to the testimony of selected witnesses, and not all the 15 petitioners, on the issue of who is liable for the harm they have suffered.

About 40 minutes later, the lawyers returned to court to inform Judge Ochieng that they had not reached an agreement and wanted to proceed with Wednesday’s hearing. Mureithi asked that Alice Atieno Ochieng, who began testifying on October 1, be allowed to conclude her testimony. Qeu said there were petitioners they wanted to cross-examine either because they did not witness the police shootings or they are “peripheral.”

Judge Ochieng allowed Atieno to continue her testimony. She was cross-examined by Bernadette Mutie who was representing the IPOA. Mutie questioned Atieno on what she knew about the IPOA. Ochieng said she did not know when the IPOA was set up. Mutie then questioned her on IPOA reports and related documents that showed the autonomous government agency was established in 2012.

“Is it true that you have not made a complaint to IPOA?” asked Mutie.

“I have not made a complaint,” said Atieno.

When Atieno concluded her testimony, Judge Ochieng issued his orders on the number of witnesses who would testify next. He said this does not mean that if the parties reached agreement at a later date they cannot present it to him.

“Even after you give evidence you can say, ‘Judge, we have reached agreement’,” said Judge Ochieng.

He said the next hearing will be on March 5 and March 6 next year.

The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts.