The Court of Appeal in Nairobi has ruled that victims of police brutality or their families can sue the State for compensation without having to wait for investigations by security agencies to be completed.
A three-judge bench made up of Justices Daniel Musinga, Mumbi Ngugi and George Odunga held that open police files or ongoing inquiries cannot bar the High Court from handling petitions on rights violations and awarding damages.
“The law permits victims or their families to pursue multiple avenues at the same time, including tort claims for wrongful death and criminal prosecution of those responsible,” the judges stated. “Each serves a different purpose and addresses a different aspect of the harm suffered,” they added.
The decision came from an appeal filed by Anjlee Parveen Kumar Sharma, the widow of businessman Bunty Bharat Kumar Shah, who was killed by police at his Westlands residence on October 28, 2017.
Shah, 32, was a director of the Bobmil Group of Companies.
Sharma sued the Attorney General, the Inspector General of Police, the Interior Cabinet Secretary, and the Director of Public Prosecutions seeking Sh730 million in damages for her family.
She told the court that heavily armed police officers arrived at their compound in armoured vehicles at 2:49 am, broke the gate, and took positions inside. Alarmed, Shah opened a bedroom window and was fatally shot in the chest by a police sniper.
She further alleged that officers prevented an ambulance from accessing the home, disabled CCTV cameras, and later acknowledged in media briefings that the raid was based on faulty intelligence.
Despite filing reports with the police and the Independent Policing Oversight Authority, Sharma said no meaningful action was taken.
In 2022, the High Court struck out her petition, with Justice Hedwig Ong’undi ruling that it was premature since investigations were incomplete and the DPP had not received an inquiry file.
On appeal, however, the Court of Appeal overturned that decision, emphasising that human rights claims are not dependent on the outcome of criminal prosecutions.
The bench also criticised long delays in the matter, noting that police officers suspected of involvement had refused to record statements.
“Failure to act on such deaths may amount to a continuing denial of justice and a breach of the State’s obligations under Articles 26 and 48 of the Constitution,” the judges ruled.
The case has now been sent back to the High Court for determination of damages.
