The High Court Judge Fred Ochieng has found that the Kenyan government is liable for failing to protect and address the concerns of three people who alleged they or a relative of theirs were victims of police shootings in the violence that wrecked Kenya after the December 2007 presidential election.
Judge Ochieng determined that the other 12 petitioners in the case had failed to prove the government was liable for any injuries they suffered or the deaths of any of their relatives during the violence that occurred between December 2007 and February 2008.
Judge Ochieng reached these conclusions on the government’s liability in a July 27, 2020 judgment. This judgment only came to light last month while the lawyer for the petitioners, Mbugua Mureithi, was seeking a date from the court to appear before Judge Ochieng and seek orders for the government to file its submissions in the case. Mureithi told the International Justice Monitor that he had not received the government’s submissions in the case until early September.
Judge Ochieng did not refer to the government’s submissions in his July 27, 2020 judgment, nor did he give any reason for not doing so. The petitioners called four witnesses during hearings that were held on October 1, 2018 ; November 21, 2018; and March 5, 2019. The government did not call any witnesses.
In the judgment, Judge Ochieng said that,
“In respect of the petitioners who did not tender evidence before this court I find that their respective claims must fail against all the respondents.”
“I find this because this is not a case in which all the petitioners were together at one particular place when the matters complained of took place. If the circumstances in which the incident took place were (the) same for the petitioners, the findings on the issue of liability would apply in uniform manner for all the petitioners.”
“But because the circumstances were different for each petitioner, the Court was obliged to make specific findings based upon the evidence tendered by each petitioner. Therefore, for all the petitioners who tendered no evidence at the trial, I find that their respective claims have no factual foundation: the same are thus dismissed.”
The four witnesses the petitioners called to testify on October 1, 2018, November 21, 2018 and March 5, 2019 are the only witnesses Judge Ochieng allowed the petitioners to call. During the November 21, 2018 hearing, Judge Ochieng directed that only a select number of witnesses testify on the issue of liability and not all 15 petitioners.
The judge said this after the different legal teams failed to reach a settlement, something he had encouraged them to do. When the first witness testified on October 1, 2018, Judge Ochieng suspended her testimony before the government lawyer could cross-examine her. The judge did this to allow him to speak to the different legal teams. It was at this point he encouraged them to reach a settlement saying, “In principle, we all know what happened in the country (in 2008), so what are we fighting about?”
In his judgment Judge Ochieng did not address his direction during the hearings that not all 15 petitioners would be allowed to testify. The judge also did not address the question of whether some of the petitioners not testifying meant they did not present evidence in court to support their claims.
When Judge Ochieng allowed the four witnesses for the petitioners to testify he restricted their testimony to the issue of liability. He said the issue of damages would be addressed later. In his judgment, Judge Ochieng did not say whether he would adjudicate on the issue of damages in relation to the three petitioners he found the government was liable for the harm they suffered.
The three petitioners Judge Ochieng found the government was liable for the harm they suffered were Alice Atieno Ochieng, Hudson Bob Libabu Lumwaji and Tobias Wanga Odhiambo. Ochieng testified on October 1, 2018 and November 21, 2018. Lumwaji and Odhiambo testified on March 5, 2019.
Judge Ochieng said Alice Atieno Ochieng, who is not related to the judge, testified she was shot at as she returned home on December 28, 2007 but she did not see who shot her. He said she told the court it was her landlord who told her it was the police who shot her but the landlord did not testify in court to corroborate Alice Atieno Ochieng’s testimony. The judge said Alice Atieno Ochieng reported the shooting at a police station in May 2008 and got a medical report stating she had a gunshot wound.
In his judgment, Judge Ochieng identified Alice Atieno Ochieng by her pseudonym, PW1, or as the ninth petitioner because she is ninth in the list of petitioners.
“Therefore the totality of the evidence tendered in respect of PW1 is that she did not identify the person who shot her. In the circumstances, there is no basis upon which the court could reasonably conclude that it is a police officer who shot the 9th petitioner.”
Judge Ochieng said Lumwaji testified that his daughter was shot and killed on December 31, 2007 and when he went to report the matter to the police, he was informed that an inquest had been opened into his daughter’s death.
“In effect, the issue about that particular incident was already being handled by the police. However, the police failed to provide this court with any information concerning the status of the inquest. The State has an obligation to expeditiously and effectively investigate any incident in which there is suspicion that the state agents had used either excessive force or lethal force,” said Judge Ochieng.
He found the Attorney General and the Inspector General of Police “violated the rights of” Ochieng and Lumwaji, “to information and remedy.” The Attorney General is listed as the first respondent in the petition and the Inspector General of Police is listed as the fourth respondent. This is how Judge Ochieng referred to them in the judgment.
The judge said he found Odhiambo, “tendered sufficient evidence to show that it is the police who shot him. The police action was unlawful and brutal. It violated the 12th petitioner’s Right to Security of the Person.” Odhiambo is number 12 in the list of petitioners in this case.
“I also find that the police failed to discharge their obligation to investigate and to prosecute the perpetrators of the unlawful shooting of the 12th petitioner,” said Judge Ochieng.
This petition was first filed at the High Court in Nairobi in February 2013. The petitioners include 13 survivors of or relatives of victims of police shootings and two organizations: Citizens Against Violence and the Independent Medico-Legal Unit. The petition was filed against the Attorney General, the Director of Public Prosecutions, the Independent Policing Oversight Authority and the Inspector General of Police.
The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts.