Nairobi — The Supreme Court has dismissed a claim for damages by an ex-spy chief over his 1982 detention under the administration of then President Daniel arap Moi.
In a majority verdict rendered on Friday, the court said its hands were tied given Stephen Muriithi (deceased) failed to sue the State, [the court] having concluded that the detention 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," Justices Philomena Mwilu, Smokin Wanjala and Isaac Lenaola reasoned.
"The estate of Stephen Mwangi Muriithi has never sued nor even sought to join the Attorney General or any other State Organ to these proceedings," the verdict read in part.
Justices Mwilu, Wanjala and Lenaola further stated that the court could not apportion liability, or compensatory relief, against a person or agency that has never been a party to proceedings.
Legal limitations
The Supreme Court agreed with the decision of the Court of Appeal overturning an award for damages granted by the High Court citing legal limitations under the then constitution.
The Court noted that given the existence of the Preservation of Public Security Act which empowered the Internal Security Minister to authorize detention of persons considered a danger to public security, a review of the same would be infeasible.
"It would be impossible for a court to determine the lawfulness of a detention,
when the entire process of inquiry had been frozen by a Detention Order," Justices Mwilu, Wanjala and Lenaola argued.
The judges further held that an application by Muriithi's wife to compel security agencies to show cause why he could not be freed as futile given the prevailing law.
"The effect of the Preservation of Public Security Act was to render the
writ of habeas corpus inoperable," the bench argued.
"As a result, the writ of Habeas Corpus was no longer available to the applicant in the face of the Preservation of Public Security Act," the court outlined.
Dissenting opinion
In a dissenting opinion however, Justices Mohamed Ibrahim and Njoki Ndung'u arguing that the finding on the violation of the petitioner's rights and freedoms should not have been voided over his failure to sue the State.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
Muriithi passed away in June 2021 at aged 84 while seeking close to Sh2 billion in compensation over unlawful detention and financial loss.
His initial claim for damages had been awarded in a 2011 suit filed before High Court Judge Jeanne Gacheche but Retired President Moi appealed the decision in 2014.
In setting aside Justice Gacheche's decision, the appellate court argued Moi was not personally responsible for Muriithi's detention as it was an act of the State.
Justices John Mwera, Daniel Musinga and William Ouko (now Justice of the Supreme Court) further said the petitioner failed to prove the losses he claimed to have suffered while in detention.
"Claims by Muriithi that he jointly had three companies with Moi, to ascertain percentage of shares, were not proven. His claims that Moi sold off and transferred some of the properties were also not proven," the judges ruled.
