Supreme court opens door for late claims, says justice has no time bar

There is no time limit for victims of State injustices and oppression to file cases in court seeking redress and compensation for violations of their rights and freedoms.

In a verdict by the Supreme Court of Kenya, the victims of State injustices can seek retribution through transitional justice after oppressive regimes are out of power.

The apex court pronounced itself in a case where former Subukia MP Koigi Wamwere’s mother Monica Wamwere filed a case seeking damages for the violation of her rights by the state in 1992.

She claimed that the State subjected her to torture, cruelty and inhuman treatment during the 1992 protests to demand the release of all political prisoners including her son.

Ms Wamwere filed the case in 2013, 20 years after the alleged violation of her rights and freedoms, in the High Court seeking Sh50 million compensation.

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However, the High Court ruled that the case was time bound. Later, the Court of Appeal upheld High Court judge, justice Issac Lenaona, findings of time limitation.

Ms Wamwere said she opted not to seek judicial redress before the 2010 Constitution because she lacked confidence in the Judiciary under the previous constitutional dispensation.

Ms Wamwere, Priscilla Kimani, Lucy Kimani, Esther Gicimu, and Michael Kamami were mothers of the politicians who were detained in 1992 for the push for multiparty.

The five moved to the Supreme Court to challenge the time limit for seeking transitional justice against violations of their freedoms and rights.

In the judgment, Chief Justice Martha Koome, Philomena Mwilu, Njoki Ndung’u and William Ouko ruled in 2023 that there is no time limit in seeking transitional justice against violation of rights under the constitution by oppressive regimes.

 “In considering whether the delay of 20 years was inordinate, we are of the considered opinion that transitional justice claims are context sensitive. It follows that courts ought to be particularly sensitive to the reasons adduced for the delay,” said the Apex court.

In their definition, the Supreme Court defined Transitional justice as situations in which a society is moving from a state of injustice to justice, from oppressive government to government that respects the rule of law, from authoritarianism to democracy.

The judges said that two superior courts affirmed that the Limitation of Actions Act, cap 22 Laws of Kenya does not apply to causes founded on violation of rights and freedoms.

On January 23 2023, the Apex court ruled that Ms Wamwere was within the time limit to file her petition 20 years later.

“The appellants’ contention that they had no faith in the pre-2010 Judiciary to render justice regarding alleged violation of rights attributed to the State could not be faulted in light of the history,” said the Apex court

The Judges awarded the victims Sh2.5 million each for violation of their freedom from inhuman treatment, saying the victims were never granted an opportunity to obtain redress and justice.

“A declaration hereby do issue that the appellants rights and freedom from inhuman treatment as protected under section 74(1) of the repealed Constitution were violated by the Government of Kenya through the actions police officers and GSU officers. The Government of Kenya shall pay damages assessed at Sh2,500,000 to each of the appellants in this consolidated appeal,” said the apex court.

The Apex court noted the need to confront and silence the ghosts of past wrongs or historical injustices was relevant in the Kenyan context.