Court dismisses protest victims payout panel, gives role to KNCHR

Court gavel. [Courtesy/GettyImages]

President William Ruto had good intentions by initiating the process of compensating victims of protests, but he was wrong in appointing the 14-member panel for the exercise, High Court Judge Edward Mureithi said on Thursday. 

In his judgment yesterday, the Judge said that Dr Ruto was required by law to instead ask for a report from the Kenya National Commission on Human Rights on the violation of human rights and proposals on the means of compensating them. 

The Judge directed that the President should amend his proclamation and gazette notice within 30 days to reflect the correct procedure, or else the court will go ahead and quash it.

 

At the same time, he said that if there is no movement from the Executive, KNHRC should go ahead and do the work that had been assigned to the team headed by Ruto’s constitutional affairs expert, Makau Mutua. 

“The solution is to allow the necessary amendment to bring them into agreement with the statutory scheme for calling for a report and publication from the KNHRC. It appears to be a case of good intention, bad execution. It will only be necessary to quash the proclamation if the amendments are not done within 30 days,” said Justice Mureithi. 

The case had been filed by lawyers Levy Munyeri, Eunice Nganga, and Central Lawyers Association–Gema Watho. 

In the case, KNHRC and the Law Society of Kenya (LSK) backed the Attorney General’s argument that the President had powers to appoint the team in his role to promote human rights. 

However, KNHRC was flip-flopping on its stance as it had opposed the appointment of the team, arguing that it was usurping its powers. This was in a case filed by Nakuru-based surgeon and lawyer Gikenyi Magare. 

“The actions of the President of the Republic of Kenya to vest the panel of experts with the mandate to design and establish an operational framework to verify, categorise and compensate eligible victims is not only illegal but also not a prudent use of public resources given that the said role clearly falls within the third respondent’s province as demonstrated herein above,” said KNHRC’s chief executive Bernard Mogesa. 

President Ruto appointed Mutua, Law Society of Kenya President Faith Odhiambo, Amnesty International–Kenya Executive Director Irungu Houghton, former Solicitor General Kennedy Ogeto, Dr John Olukuru, Rev Kennedy Barasa Simiyu, Naini Lankas, Dr Francis Muraya, Juliet Chepkemei, Pius Metto, Fatuma Kinsi Abass, Raphael Anampiu, Dr Duncan Ojwang, Richard Barno, Dr Duncan Ndeda, and Dr Raphael Ng’etic. 

Ms Odhiambo, however, crumbled under pressure and tendered her resignation. 

The panel had also split the LSK. When Munyeri’s case was called, lawyer Elisha Ongoya indicated that he would be on record for the society. The society also urged the court to dismiss the case. 

Kevin Michuki was the initial lawyer who had filed a reply on behalf of the society, backing lawyer Munyeri’s argument that the panel was illegal. 

Michuki’s court papers and Ongoya’s subsequent presence, however, followed intrigues in the council that allegedly boiled into a heated exchange between council members. 

Michuki filed his notice of appointment on 29 September 2025 and subsequently filed submissions dated 3 October 2025. 

“We submit that the appellants have not disclosed in what manner the execution of the orders of the High Court will irreparably affect or negate their respective cores. It must be noted that the orders of the High Court were not directed at any of the appellants and as such their enforcement will not be against their persons and it would therefore not affect them,” Gichuki’s submissions read in part. 

Ongoya and Wambola Advocates firm, however, filed a notice of change of service on Sunday, 5 October 2025, signalling that Michuki had been replaced as the LSK lawyer. 

In the case, the panel claimed that it was not set up to compensate victims. Instead, the team alleged that its work was purely advisory. 

According to them, its recommendations would allegedly be reviewed by the government before being implemented. 

“At all times, the panel has treated its task as advisory. It does not distribute monies. It will recommend modalities that are lawful, proportionate, and capable of appropriation through the existing budget framework by competent authorities. Any implementation would be done by bodies with mandate and budgetary authority, subject to parliamentary oversight,” the panel replied in the three separate cases, read in part. 

According to the panel, none of its roles clash with those of the established government agencies or involve taking on the role of judges to order reparations. 

Nevertheless, in its submissions, it claimed that the executive and the legislature can also devise administrative reparations and humanitarian schemes, provided they are within the budget. 

“The Panel’s remit is to recommend, not to pay. That is precisely the reason the Panel exists, namely to ensure that any proposals are rooted in legal authority and comparative best practice and to avoid ad hoc, unsupervised payouts,” the Mutua team asserted. 

In its case the team claimed that Kenya National Commission on Human Rights (KNHRC)’s powers do not include compensation. 

It argued that KNHRC’s participation was through the incorporation of Veronica Mwangi to the technical committee after being nominated by the commission’s CEO. 

“The evidence tendered confirms that KNHRC is not a paying agency and does not administer any statutory compensation fund, but has recommended that Government structure prompt assistance to victims through lawful schemes. The Panel’s advisory work aligns with, and operationalises, that rights-based policy trajectory by developing a survivor-centred, budget-law-compliant framework for consideration by the Executive and Parliament,” the panel’s submissions read in part. 

Despite KNHRC nominating Ms Mwangi, the government’s human rights agency, in its response to a separate case filed by a Nakuru surgeon, Magare Gikenyi and Kenya-based Eliud Matindi in the United Kingdom, argues that the appointment of the 17-member team violates the Constitution. 

Its CEO, Dr Bernard Mogesa, stated that the appointment was a usurpation of the work done by KNHRC. 

He asserted that it would be a waste of money to have other persons do the same job cut out for the independent commission. 

“The actions of the President of the Republic of Kenya to vest the panel of experts with the mandate to design and establish an operational framework to verify, categorise and compensate eligible victims is not only illegal but also not a prudent use of public resources given that the said role clearly falls within the third respondent’s province as demonstrated herein above,” replied Mogesa. 

He said that Dr Ruto’s actions were not based on the Constitution or the law, as the drafters of the Constitution envisioned that KNHRC would be an independent institution that ought to ensure that the government observes human rights, investigates violations and provides reparations. 

Mogesa asserted that the panel cannot stand as the presidential proclamation and the subsequent gazette notice were constitutionally infirm. 

After Odhiambo left, Ruto appointed Claris Awuor Ogangah-Onyango, the KNHRC chair, as her replacement as the deputy chair of the panel. 

KNHRC then joined the AG in opposition to the cases by Munyeri, Nganga and Gema Watho. KNHRC claimed that the assignment of the panel did not usurp its powers. 

The Mutua team, however, alleged that other countries, such as Chile, adopted the Valech Commission and post-George Floyd mechanisms in the United States for inquiries and compensation. Others include Lagos State’s #EndSARS Judicial Panel and Tunisia’s Truth and Dignity Commission.