Wachira Weheire v. Attorney General

Civil Case 1184 of 2003; 2010 AHRLR 185 (KeHC 2010)
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The plaintiff, Weheire, brought a suit against the Attorney-General alleging degrading and inhuman treatment during his arrest and detainment in 1986, a violation of his rights under the Constitution of Kenya (“Constitution”),.

In December 1986, Weheire was arrested without a warrant.  After his arrest, Weheire claimed that his house was unlawfully searched. Weheire further alleged that he was held in Nyayo House Torture Chambers for 16 days before his trial.  During his time in Nyayo House, Weheire claimed he was subjected to interrogations while naked, hungry, thirsty, and/or sleep deprived with frequent physical assaults by officers, placement in dark, water logged cells, and other torturous activity.  He was arraigned in court later that month and pled guilty to the charges.  Weheire claimed that because the officers who tortured him were present in the court room, he was psychologically forced to plead guilty.  He was sentenced to prison.

Weheire alleged that while in prison he experienced severe mental and psychological torture and the aggravation of mental and psychological suffering from the mandatory hard labor. Weheire was released from prison in August 1989.

In 2003, Weheire filed a claim with the High Court in Nairobi.  In 2008, the Attorney-General had not filed a reply to his claim, and Weheire submitted two sets of written statements under the assumption the matter would proceed ex parte.  The Attorney-General then filed grounds of opposition and written submissions in November 2009.

The Court held that detaining the plaintiff in Nayao House for 16 days violated his right to personal liberty under section 72(3)(b) of the Constitution.  The Court found that there was no justification given for this extended detainment, or the delay in his court appearance.  The plaintiff should have been produced in court within 24 hours.

The Court held that the plaintiff was tortured during his detainment in the Nayayo House, in violation of Section 74(1) of the Constitution.  The Court reasoned that the plaintiff was able to describe the specific actions in detail, and the defendants did not make any attempt to deny the plaintiff’s claims, which led the court to find the claims of torture true.  While the plaintiff was unable to provide documentation of medical examinations from around the time of the acts, he did submit medical reports that support that he was mentally, physically, and psychologically tortured and currently still experiencing adverse effects of the torture.

The Court held that the search of the plaintiff’s house after his arrest was not unlawful because it was justified in the interest of public safety.

The Court found that Weheire’s trial did not violate the Constitution.  The Court reasoned that the criminal court had no indication or reason to believe the plaintiff was tortured and was not a free agent, and the plaintiff had made no effort to inform the court at the time.

The Court found that the imprisonment of the plaintiff was in accordance with section 72(1)(a) of the Constitution.  He had plead guilty to the charges and was imprisoned based on his conviction.  There was no evidence that his rights were violated during his time in prison.

“The acts that the plaintiff was subjected to of being kept hungry and without sleep for several days, being physically assaulted by being kicked, whipped and burned with cigarettes, pricked with pins, hose piped and placed naked in water-logged cells, were all cruel and degrading treatment and therefore a violation of section 74(1) of the Constitution.” Para. 47.

“We find that the plaintiff was arrested and held by police officers, and that he suffered the violation of his fundamental rights as the hands of the officers of the government. The government must therefore take responsibility for the action.” Para. 55.

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