The Court of Appeal in Nairobi has upheld the High Court's order for the government to pay the family of Pakistani journalist Arshad Sharif Sh10 million in compensation for his fatal shooting by Kenyan police three years ago.
However, at the same time, the court absolved the Independent Policing Oversight Authority (Ipoa) from claims that it failed to take action against the two police officers who killed Sharif.
The three-judge bench delivered this ruling despite declining a request by Sharif's widow, Javeria Siddique, together with the Kenya Union of Journalists (KUJ) and the Kenya Correspondents Association (KCA) to increase the compensation award to Sh250 million.
He was fatally shot by police at a roadblock on October 23, 2022 while travelling as a passenger in a vehicle at Tinga Market along Magadi Road, Kajiado County at around 9pm.
Prior to the incident, he had been living in self-imposed exile in Kenya for two months.
The late Pakistani journalist Arshad Sharif who was shot dead at a police roadblock on the Nairobi-Magadi road in Kajiado County on October 23, 2022.
Photo credit: Aamir Qureshi | AFP
While ruling on an appeal filed by Ipoa against the High Court ruling, the Court of Appeal overturned the High Court's finding that Ipoa was among the state entities liable for violating Sharif’s constitutional right to life, dignity, and equal protection of the law.
Justices Daniel Musinga, Mumbi Ngugi and Francis Tuiyott found that the Ipoa had investigated the incident and made recommendations to the Director of Public Prosecutions (DPP) for the prosecution of the police officers involved in the shooting.
"Having made its recommendations on May 29, 2023 to the DPP, Ipoa had fulfilled its investigative mandate; the ball now lay in the DPP’s court; and Ipoa had no means of eliciting or compelling action from the DPP. Consequently, the failure to prosecute as recommended by Ipoa lay on the DPP and cannot be attributed to Ipoa or the other respondents before the trial court," said the judges.
Following an investigation, Ipoa concluded that the facts of the case revealed a criminal act rather than 'negligence in the performance of duty' by the police officers.
The judges stated that Ipoa had discharged its investigative role by forwarding its findings and recommendations to the DPP. Ipoa could not be blamed for the DPP's failure to prosecute the police officers.
"We therefore resolve this issue in favour of the appellant (Ipoa) and hold that the trial court erred in finding that the respondents were jointly and severally liable for the failure to prosecute the persons found responsible for the shooting of Sharif," they added.
However, the court found that the Ipoa had failed in its duty by not responding to the widow's inquiries, which were within its mandate.
The judges stated that the High Court had erred in holding the Ipoa jointly and severally liable with the Inspector-General of Police, the Director of Public Prosecutions, the Attorney-General, and the National Police Service Commission for the payment of damages to the widow.
"We find the contentions by Ipoa that the trial court erred in making blanket findings and orders to have considerable merit," said the judges.
"In our view, the trial court ought to have considered the respective mandates of the state entities before it, isolated their respective responsibilities, and made appropriate orders, including by apportioning such damages as it found due and payable to the first respondent (the widow) between them."
Regarding the damages, Ipoa argued that the award of Sh10 million was excessive, while Ms Siddique, together with KUJ and KCA, asked the Court of Appeal to increase the compensation to Sh250 million. They said the enhancement was to vindicate the violated rights and deter future violations.
The court noted that Ms Siddique, together with KUJ and KCA, had not informed the trial court of the damages they were seeking.
In their pleadings, they referred to the fact that Sharif was an investigative journalist in self-imposed exile in Kenya, who was dependent on his mother, two wives and five children.
However, they did not provide information regarding his employment or income, nor did they mention that they were filing the suit on behalf of his estate.
"All in all, the trial court had limited material on which to base an award in damages, and in the circumstances, we find the award the court made neither too low nor too high in the circumstances as to merit interference by this Court," said the Court of Appeal as it declined to interfere with the amount of damages awarded to Ms Siddique.
However, Ipoa is not among the state entities liable for payment of the damages.
The court ordered Ipoa to provide Ms Siddique, KUJ and KCA with an update on its investigations into Sharif's death, the recommendations made to the DPP and the response received within 30 days.
The judges also declined to issue an order compelling the DPP to prosecute the police officers implicated in the shooting, or to compel the IG to take disciplinary action against them.
"Given the constitutional mandate of the DPP, we are not satisfied that the trial court erred in declining to issue an order compelling the respondents to prosecute the police officers, nor are we satisfied that we can, in the circumstances, issue a mandatory order compelling the respondents to conclude investigations, take disciplinary action or charge in court the two police officers who shot and killed the deceased (Sharif)," said the judges.
They held that it is the responsibility of the DPP to exercise its mandate under Article 157 of the Constitution to determine whether or not to prefer charges.
