Supreme Court dismisses ex-spy boss Muriithi's case against Moi

When the late former President Mzee Daniel Arap Moi shook hands with the late former Commissioner of Prisons Reuben Nzioka Mutua during the state visit of the late Pope John Paul 2. [File, Standard]

The Supreme Court has dismissed a case filed by former spy boss, the late Stephen Mwangi Muriithi against former President Daniel Moi.

Judges Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola heard and determined the case. A majority of the judges ruled in favour of Moi as two gave a dissenting opinion. Judges Mohamed Ibrahim and Njoki Ndung'u gave a dissenting opinion.

"Having disposed of the twin issues that were the basis for the assumption of jurisdiction, and having reached the conclusions we have, regarding apportionment of liability and compensatory relief, we are left with no option but to dismiss the appeal," read the judgment of the majority in part.

Delivering the judgment at the Supreme Court yesterday, the judges said Muriithi's right to personal liberty was violated upon his detention without trial through the now infamous detention order signed by the Minister responsible for internal affairs. They, however, noted the violation was an act of the State.

"This violation was an act of State, for which compensation should ideally be awarded to the estate of Stephen Mwangi Muriithi against the State," they said.

The judges noted the estate of Muriithi has never sued nor even sought to join the Attorney General or any other State Organ in the proceedings and cannot apportion liability, or compensatory relief, against a person or agency that has never been a party to these proceedings.

"Therefore, the Court cannot apportion liability, or compensatory relief, against a person or agency that has never been a party to these proceedings. A party is always bound by its own pleadings," the judgment stated.

Muriithi was on May 22, 1982, arrested by the police and could not be traced forcing his wife to file an application at the High Court against the Criminal Investigations Department (CID) now Director of the Criminal Investigations (DCI) seeking the production of his body or to show cause why he could not be released

The High Court issued a summons to the CID boss, requiring him to appear before it to show cause why Muriithi could not be released.

The CID boss appeared and produced a copy of a Detention Order, placing the deceased under preventive detention. In its ruling, the High Court on May 29, 1982, dismissed the summons on the grounds that the police had discharged their burden and shown cause why they could not release Muriithi.

The court in its reasoning said the Director of CID had answered the court summons and had satisfactorily shown that he was unable to produce the deceased or release him because he had been detained in lawful custody under the Preservation of Public Security Act and Regulations.

On October 23, 2009, 27 years later, the Muriithi filed before the High Court's Constitutional and Judicial Review Petition No. 625 of 2009 against Moi, who at the time of the deceased's detention was the Head of State.

Muriithi in the suit alleged a violation of his right to personal liberty and to property enshrined in the Constitution. It was his contention that his detention was illegally orchestrated by President Moi, who was his business partner, for the sole purpose of dispossessing him of his proprietary rights.

Punitive damages

The trial court then found that Moi was liable to compensate Muriithi for unlawful detention and loss of property. It awarded him a sum of Sh50 million as punitive damages against Moi's at an interest rate of 12 per cent per annum from the date of the judgment till payment in full, Sh80.2 million at an interest rate of 12 per cent per annum on a compounded basis for what would have been the deceased's share of the proceeds of sale from the suit properties.

Aggrieved, Moi lodged an appeal and in a judgment delivered on May 9, 2014, the Court of Appeal, (Musinga P, Mwera, and Ouko (as he then was) JJ.A) allowed the appeal, consequently overturning the High Court's decision.

Judge Ibrahim in his dissenting opinion said he partially agreed with the majority of the judges that the reservation of the Public Security Act gave the minister in charge of Internal Security the authority to order the detention of anyone who, in his or her judgment, posed a threat to public safety, arbitrarily restricting an individual's freedom through an administrative process, designed to bypass or defeat the purpose of a writ of habeas corpus.

Ibrahim said he would have partially allowed the appeal and issued orders to the effect that the petitioner was and is entitled to damages and interest owing to the loss of business incurred as a result of his detention.

He said he would have issued an order setting aside the whole of the judgment rendered by the Court of Appeal on May 9, 2014.

The judge said he would have issued an order partially reinstating the Judgment and Order of the High Court of Kenya at Nairobi (Gacheche, J.) to the effect of awarding compensation for the deprivation of Muriithi's liberty a sum of Sh5 million and for the deprivation of his property Sh27.5 million against Moi's estate.

Judge Njoki said once the court established that Muriithi's right to personal liberty was violated upon his detention without trial, the court ought to have come to his aid whether or not Attorney General or the State in the suit were parties to the suit, and provided remedies.

She said it is important for the State to be aware that the past conduct of its officials and agents will no longer remain unpunished. "In my opinion, this court cannot shut its eyes to the fact that the detention as evidenced, violated the deceased's right to personal liberty. In addition, such detention causes a huge financial, social, and emotional cost to family members of such incarcerated people," she stated.

"Having so concluded, I would therefore have given similar orders as has my brother Ibrahim, SCJ in his separate dissenting opinion."