No compensation for 1998 bomb blast victims, Court rules

The High Court has dismissed a petition seeking compensation and a commission of inquiry over the 1998 Nairobi bomb blast, ruling that the applicants failed to prove the State neglected its duty to prevent the attack.

In a judgment delivered on Wednesday, Justice Lawrence Mugambi ruled that the petition, filed in 2021, lacked merit and did not establish liability on the part of the government.

Justice Mugambi said the petitioners had alleged that the State ignored repeated early warnings and failed to act to prevent the attack, including securing Kenya’s borders, despite the threat being known or ought to have been known.

However, the judge held that the petitioners bore the burden of proof and had failed to discharge it.

“The obligation placed on the State is clear. The State must take positive steps to prevent violations of the right to life,” Justice Mugambi said, citing constitutional principles and international human rights standards.

He noted, however, that under the Evidence Act, “the burden of proof lies on the person who desires the court to believe in the existence of facts,” adding that the petitioners were required to demonstrate, on a balance of probability, that specific intelligence existed and that the government failed to act on it.

On the issue of delay, the respondents had argued that the petition was filed more than two decades after the attack, contending that the lapse of time had caused prejudice to the State.

The petitioners countered that they had been engaging the respondents over the years and were repeatedly given assurances that compensation was under consideration, adding that constitutional claims are not strictly limited by time.

Justice Mugambi found the explanation for the delay satisfactory.

“I find the explanation given by the petitioners for the delay in filing this petition satisfactory,” he said, adding that the State had failed to clearly demonstrate the prejudice they alleged.

“The claim of prejudice was made, but it was not articulated," the judge observed.

The judge also addressed reliance on foreign court decisions, noting that the petitioners had cited judgments from the United States.

“I have gone through the files, and I did not find any finding by American courts attributing neglect to the Kenyan government,” he said, adding that such material could not be relied upon to establish liability.

Justice Mugambi further observed that no affidavits had been sworn by the authors of the reports relied upon, and that no demonstrable evidence had been produced to show that Kenya received prior intelligence and failed to act on it.

“Without evidence of failure on the part of the respondents, the averments by the petitioners remain hollow,” he said.

“There is no basis upon which liability can be imposed.”

On the prayers seeking a declaration of State culpability and an order compelling the President to establish a commission of inquiry, the court declined, holding that such decisions fall within the discretion of the Executive.

“To grant this prayer would amount to meddling with the independence of another independent officer,” Justice Mugambi said.

He similarly rejected prayers directing the Attorney General to present a report on steps taken to obtain reparations from foreign states, noting that such actions could have serious foreign relations implications beyond the Attorney General’s constitutional mandate.

For those reasons, the judge dismissed the petition in its entirety.

“Having found that the petitioners have failed to prove that their rights were violated, I find that the petition lacks merit and is hereby dismissed,” Justice Mugambi ruled.