The High Court in Kisumu has ordered the Inspector General of Police and the National Police Service to pay Sh38.5 million in compensation to 28 victims of police brutality who were killed, injured, or maimed during anti-government protests in 2023.
In a ruling delivered on Wednesday, Justice Alfred Mabeya found that police officers used excessive and unlawful force against civilians who were not participating in the “Azimio maandamano” protests against the high cost of living, which took place between March and July 2023 in Kisumu, Migori, and Ahero.
The judgment details harrowing accounts of young Kenyans shot dead while running errands, children torn from their homes and beaten to death, and teenagers shot while playing football.
Brian Oniang’o, 22, and William Akhala Omulele, 24, were in their Nyalenda home resting after lunch when officers in riot gear stormed in, dragged them outside, assaulted them with clubs and kicks, and left them for dead.
They died at Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) days later.
Joshua Lucas Kiwendo, 17, was sent to buy provisions for supper on July 19, 2023. He never returned.
His father found him at the county referral hospital with a bullet wound to his left scrotum.
The teenager died on November 26, 2023, from complications.
Margaret Abongo Onyango, 16, was shot while running away from police after being sent to buy tomatoes.
A rubber bullet was extracted from her right clavicle.
These were not protesters, the court said, They were people going about their daily lives.
“The undisputed evidence was that the petitioners were victims of police brutality,” said Justice Mabeya
“None of the petitioners were demonstrators. They were either shot at or clobbered while going on with their daily chores.”
The court found that police officers had violated multiple constitutional rights, including the right to life, right to security of the person, right to dignity, right to privacy, right to fair administrative action, and the right to protection of children.
In total, nine people lost their lives at the hands of police during the period.
Nineteen others sustained injuries, with several suffering permanent disabilities ranging from 5% to 30%.
“The members of the 2nd respondent used excessive force in dealing with the demonstrators in Migori and Kisumu. They used lethal weapons against the Petitioners that resulted in the violation of the Petitioners’ rights,” said Mabeya.
The court held that police officers disproportionately targeted residents of informal settlements including Nyalenda, Kondele, Nyamasaria, and Obunga, while leaving affluent areas like Milimani and Riat untouched , a finding the court said amounted to discrimination.
Justice Mabeya applied the international law principle of “command responsibility” to hold the Inspector General of Police liable for the actions of junior officers.
“The overall operational command of the National Police Service is on the Inspector General,” the judge said.
“The subordinates of the 1st respondent ran amok. They were under his control and direction. They perpetrated heinous acts. Someone has to take responsibility.”
The court found that police officers used lethal weapons including firearms and batons against unarmed civilians, often as a first resort rather than a last resort as required by law.
“The use of guns is limited by both national and international law to instances where it is unavoidable to protect self or another individual from imminent threat of death or serious injury. That was not the case,” said Mabeya.
The Independent Policing Oversight Authority (IPOA) also faced sharp criticism from the court for its failure to conduct timely investigations.
Despite the events occurring between March and July 2023, by the time the petition was lodged over 25 months had passed with no meaningful progress.
“There is no investigation that can be too complex as to take forever to be undertaken. It is an attitude problem. This must not be encouraged!” Justice Mabeya said.
The court ruled that IPOA “took unto itself the opportunity to take forever in carrying out the investigations,” leaving victims without recourse and perpetrators unpunished.
An order of mandamus was issued directing IPOA to complete investigations within 90 days and provide victims with updates.
Failure to comply could result in further proceedings for compensation against the authority.
“An order of mandamus hereby issues directing the 4th respondent to initiate prompt, thorough,and impartial investigations into the circumstances under which the petitioners and or their kin died or were injured at the hands of the officers of the 2nd respondent under the overall command of the 1st respondent during the period material to this Petition, and to further supply the petitioners with the status of the investigations and recommendations they have arrived at in regard to the appropriate action to be taken as the conclusion of the investigations within 90 days of the date hereof. In default, further proceedings for compensation to the Petitioners to issue against the 4th respondent,” ruled the court.
The Inspector General of Police and the National Police Service have been directed to prepare, develop, and publish regulations on public order management to regulate public demonstrations and picketing under Article 37 of the Constitution.
These regulations must address the use of force and must be published within 90 days.
The Kenya National Commission on Human Rights and IPOA were tasked with ensuring compliance.
Justice Mabeya held that there was a “complete disconnect” between the police service and its constitutional mandate under Article 244 to uphold high standards of professionalism, discipline, and human rights.
“This Court did not have the benefit of knowing what the NPS has done to comply with the Constitution 2010. The level of violence meted out to the petitioners gives credence to doubts as to the existence of a set of rules and regulations to govern public order,” ruled Mabeya.
The court awarded damages ranging from sh 300,000 to sh 4.87 million to the victims, with the largest awards going to those who suffered permanent disabilities.
17-year-old Joshua Lucas Kiwendo was awarded sh 1.05 million. His father, the third petitioner, had testified about his son’s final days and the long wait for justice.
Joseph Ocala Ongili, 29, who was shot in the left thigh and now requires lifelong medication, received sh 4.87 million, the largest individual award.
David Ongudi Okoth, who was shot in the chest with the bullet perforating his colon, received sh 3.5 million.
Clinical officer Kennedy Omondi Owiti, who was shot in the chest and suffers from lung fibrosis, was awarded sh 4 million.
Families of those killed received between sh 910,000 and sh 1.4 million each, with awards factoring in pain and suffering, loss of expectation of life, and loss of dependency.
Justice Mabeya further praised Dorcas Akinyi Oluoch, the chair of the Law Society of Kenya’s Kisumu Chapter, who coordinated the collection of evidence, interviewed victims, and led the pro bono legal team that filed the petition.
“The 29th petitioner should be applauded for her effort and those of her colleagues who withstood the frustrations of fighting for the voiceless,” the judge said.
“It is such brave Kenyans who protect the Constitution and public interest that national awards should be considered for.”
The court will convene again on July 7, to confirm compliance with the orders issued.
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