Court overturns Sh2.5m award to man who killed freedom hero

The man who killed freedom fighter Pio Gama Pinto died two years at the age of 79.

The dead tell no tales, nor can they defend themselves.

When he lived, Kisilu Mutua maintained that despite being behind bars for 36 years, he was forced to confess to the 1965 murder.

Pinto, a firebrand journalist and politician, was shot dead on February 24, 1965, at close range in the driveway of their family home in Westlands, Nairobi.

Mutua was arrested on the same day while drinking with his friends at the New Rwathia Bar in the city centre.

Five months later, on July 15, Chief Justice Sir John Ainley sentenced Kisilu to death, but he was freed through a presidential pardon.

In 2017, he made history as the first prisoner to be compensated when he was awarded Sh2.5 million for torture.

Justice John Mativo had found that Mutua had given a credible account that he was beaten up and his testicles pressed to milk the narrative the police wanted.

He, however, clarified that his judgment was only focusing on torture and not the evidence and conviction.

“When a citizen is arrested on allegations of committing an offence as in the present case, his or her fundamental rights are not abrogated in toto. His dignity cannot be allowed to be comatose.

“The right not to be subjected to inhuman treatment enshrined in the Constitution, includes the right to be treated with human dignity and all that goes along with it. Inhuman treatment has many a facet,” said the judge, now at the Court of Appeal.

“It fundamentally can cover such acts which have been inflicted with an intention to cause physical suffering or severe mental pain. It would also include a treatment inflicted that causes humiliation and compels a person to act against his will or conscience.” 

But on Friday, his colleagues Justices Abida Ali-Aroni, Aggrey Muchelule and George Odunga set aside the judgement and affirmed that the confession, charges, trial, conviction and sentence was above the law.

“If the reason for the torture was to obtain a confession to support the trial, and now that he conceded he was tried based on a voluntary confession, was he tortured? Were his testicles squeezed? Our conclusion is that, given the evidence, the learned judge fell into error in finding that the respondent’s testicles were squeezed or that he was tortured,” the Bench headed by Justice Ali-Aroni ruled.

Mutua, who had been charged alongside Chege Thuo, was spared the hangman’s noose since the country was not killing murder convicts. The sentence was commuted to life.

On July 4, 2001, former President Daniel Moi released him through a presidential pardon.

Mutua had initially challenged the trial, arguing that the evidence was obtained through torture. The convict asserted that the trial leading to his conviction was a fundamental miscarriage of justice.

He, however, dropped the trial line and relied on evidence as his defence.

After six police officers took him to the Eastleigh Police Station, Mutua claimed that he was tortured until he lost consciousness. Besides the squeezing of his private parts, he claimed police beat his toes using a club.

He narrated how the officers took him to Westlands where someone had been killed, and thereafter forced him to sign a pre-prepared statement.

Kisilu also alleged that upon his release, he was promised a piece of land, which was not given. However, Justice Mativo dismissed the claim, arguing that no one had the power to enforce such a promise.

At the High Court, the Commissioner of Police Henry Barmao asserted that the law cannot be applied backwards. In his August 21, 2015, statement, Barmao argued that after the 2010 Constitution, any claim alleged to have happened under the 1963 Constitution could not be re-opened.

The Attorney General, representing police, opted not to call any witnesses to counter Mutua’s case.

Nevertheless, the government’s principal legal advisor argued that Mutua had slept on his rights for 49 years. The AG said there was no tangible explanation why he had not filed a case before. The claims of torture and mistreatment were also denied.

Justice Mativo ruled that the claims remained uncontroverted. He said the court had the power to check the police’s excesses. According to the judge, torture under the old regime could not be wished away because the country had entered into a new dispensation.

“There is no shadow of doubt that any treatment meted out to a citizen which causes humiliation and mental trauma corrodes the concept of human dignity. The majesty of law protects the dignity of a citizen in a society governed by law. It cannot be forgotten that the State is governed by rule of law which must be paramount.

“The Constitution as the organic law of the land has unfolded itself in manifold manner like a living organism in the various decisions of the court about the rights of a person under the bill of rights. When citizenry rights are sometimes dashed against and pushed back by the members of the police force, there has to be a rebound and the Constitution springs up to action as a protector.”

He ordered that the Sh2.5 million award would attract interest from 2015 until it was paid in full.

Aggrieved, the AG moved to the Court of Appeal, arguing that Justice Mativo erred by holding that Mutua’s testimony remained uncontested simply because the State did not call a witness.

The AG also faulted the court for awarding Mutua without a medical report as evidence to show that he had been tortured.

He also challenged the finding that the case was properly filed despite 49 years of silence.

The AG asserted that Mutua should have objected and protested that he was made to sign a witness statement under duress. 

“In any event, there was no evidence, medical or otherwise, indicating that he had been tortured while in police custody,” argued the AG.

The State defended its failure to call witnesses, saying it was impossible to call any of the arresting officers since 49 years had already passed.

The AG argued that Mutua equally did not call any third party or give documents to prove his claims.

But lawyer Ojwang Agina, represented Mutua, argued there was no contrary evidence from the State that the police did not hurt Kisilu.

He asserted that the amount awarded by the High Court was reasonable for both psychological and physical torture.

Agina said his client had explained that he was still in pain and had been attending treatment.

In the end, the Bench agreed that Mutua had the burden to prove that he was tortured during interrogation.

The three judges said failure by the State to call a witness did not make his side of the story credible.

“He stated that he still suffers pain from the injury that he suffered. He was asked to admit that while in custody, he was not treated for the injury. When he came out of prison, he stated that he continued with his treatment. He was asked for any medical evidence. He had none. Any witness he could call to support the alleged injury or treatment? He had none,” they observed.

According to the Court of Appeal, Mutua’s confession must have been voluntary.

Pinto was born to Goan parents in Nairobi on March 31, 1927. His father had immigrated from India to the then colonial territory.

The activist spent his early years in India, where he joined the liberation movement against Britain and Portugal, the colonial masters.

The founder of the Goa National Congress fled to Kenya in 1949 after the colonial masters issued a warrant for his arrest.

In Kenya, he edited the Daily Chronicle newspaper and contributed to the All India radio programme, which urged the British to leave the country.