State ordered to pay family of demo victim Sh2m

Anti-riot police officers roughup one of the Azimio la Umoja supporters during anti-government protests in Kisumu. [Standard]

The Court of Appeal has awarded the family of a man killed during demonstrations Sh2 million. While awarding the compensation, the Appellate Court in Kisumu characterised the average unarmed demonstrator as a fly and that the Constitution should guard against excesses of armed police.

Citing Gloucester's philosophical musings in the Shakespearean lament of King Lear, "as flies to wanton boys are we to the gods; they kill us for their sport" the court noted how hapless the demonstrators could be in the eyes of rogue police even as it is legal to demonstrate.

It subsequently threw away a Bungoma High Court judgment that declined to compensate the family of a riot victim, Allan Amugune Tobiko aged, 27, saying courts should play a significant role to see the right to demonstrate and that life is grudgingly guarded.

The Bungoma court on July 13, 2017 dismissed the petition filed by the kin of Tobiko, seeking compensation for his unlawful killing caused by police bullets in Kimilili town, a demonstration on February 22, 2015.

It held that police were compelled to use excessive force including firing gunshots, from which an unarmed Tobiko died, because they (police) were under siege.

It also held that, from the evidence presented at an inquest conducted by a Kimilili magistrate's court to find the circumstances under which Tobiko died, it was difficult to determine whether he (Tobiko) was among the masses that confronted the police or an innocent passer-by.

But the three judges in Kisumu threw out the Bungoma judgment quoting provisions of the 2010 Constitution in Article 22 on enforcement of the Bill of Rights. They maintained that courts are enjoined to do more to give meaning to the rights.

"It is for courts to make every effort where the case demands it, to vivify the fundamental rights and to grant appropriate remedies, among them compensatory damages. It must be so if the right is to prevail if the citizen is to be superior to the public officers who must serve rather than lord it over them, and if the life of each Kenyan is to matter as it ought," said Justice Patrick Kiage in a judgment endorsed by his peers Mumbi Ngungi and Francis Tuiyott.

"The wielders of power and the bearers of arms must be constrained by law and reasonableness lest citizens find themselves raising the Shakespearean lament in King Lear, that 'as flies to wanton boys (in blue?) are we to the gods (or demigods?); they kill us for their sport.'"

The trio regretted that a life was lost but took solace in their judgment that reasonable compensation could help the victim's family heal.

"Life lost cannot be restored but an award of damages can provide acknowledgment, closure, and a measure of solace. Tobiko's family sought Sh1,980,000 in compensation for lost years while the respondents, to their credit, offered Sh600,000. There was also a further claim for general damages under the rubric of lost life. I think that in the circumstances of this case, a global figure of Sh2 million would be appropriate to cover both heads of claim," said Kiage.

"Inevitably then, I allow the appeal to the extent that the respondents shall pay the appellant Sh2 million as general damages. The sum shall attract interest at court rates, from the date of the High Court judgment, until payment in full. The appellant shall also have costs of this appeal."

The respondents who included the Interior ministry, Police Service, National Police Commission, Inspector General of Police, and Attorney General, said the shooting of Tobiko was not intentional.

The inquest narrowed down to police constable Solomon Nyae and Sergeant Mbugua as the officers who fired in the crowd but could not directly link either to the killer bullet as ballistic reports were soiled.

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