Post Election Violence victims payout appeal dismissed

Three victims of the infamous 2007 post-election violence will not receive government compensation because they did not report the looting and destruction of homes and property at the Eldoret Police Station.

The Court of Appeal has upheld the dismissal of the constitutional petitions lodged by Charles Muriithi, Newton Mbugua and Paul Ngugi in a unanimous decision by High Court judges Isaac Lenaola, Mumbi Ngugi and Cecilia Githua on April 24, 2015.

There was no common law right of recovery of damages caused by mob violence and the government could only be held liable where implicit official acquiescence was proved, the three-judge bench ruled.

“It is public knowledge that within hours of the results of the December 2007 presidential election were announced, Kenya was engulfed in a deluge of violence, looting and arson in an unprecedented occurrence that shocked not only Kenyans but the world at large.

The violence, in turn, spawned a series of ethnic-based reprisal attacks in some parts of the country,” Appellate judges William Ouko, Hannah Okwengu and Fatuma Sichale observed.

They said the cause of the violence was traced to the long pent-up social, economic and political grievances that had been simmering over the years. 

Massive numbers

However, the final report of the Commission of Inquiry into the post-election violence found the mayhem was spontaneous over the alleged rigging of elections, which later evolved into well-organised and coordinated revenge attacks along ethnic lines.

The report of the commission that was chaired by now-retired Appellate judge Philip Waki said the police were overwhelmed by the massive numbers of the attackers in many parts of the country.

“It would be unreasonable and unrealistic to expect the police to be in every corner and home providing security and protection to everyone and their properties on a 24-hour basis,” the Appellate bench pointed out.

The court said the three businessmen had accused the police of failing to prevent the attacks before they occurred or to stop them.

But crime prevention, even in the most developed nations, was a mirage and that is why there has been on the rise terrorist attacks, violent robberies and sexual offences.

“We reiterate that the attacks were spontaneous and sporadic. Though there had previously been violence in every election cycle, there has never been one in the magnitude witnessed in 2007,” Justices Ouko, Okwengu and Sichale said.

They said one of the complainants had confirmed that during the attack on his home by about 400 gangsters, only four policemen were present. 

“In view of the magnitude of the attack and considering the police capacity, the police did their best, in the circumstances,” the court said in the 19-page judgment pronounced on Friday.