A former Kenya Army soldier claiming he was mistaken for a Tanzanian spy and unlawfully imprisoned for six years during the Moi era has lost his compensation bid following a 39-year delay that crippled the State’s defence.
The High Court found that key witnesses had died, official military records could no longer be traced, and the decades-long delay made it impossible for the State to fairly rebut the torture and wrongful imprisonment claims.
In its ruling, the court dismissed a petition filed by former soldier Peter Mosabi Kihingu against the Attorney-General over his arrest, detention, prosecution and imprisonment in 1980.
"Allowing such a petition to proceed in the circumstances would be condoning abuse of the judicial process as it exposes the respondent to an unfair trial," the court said, throwing out the petitioner's claim that the delay in filing the case was due to fear of reprisal from President Daniel Arap Moi's administration.
The court said the fear could not have been sustained until July 2018 when the petition was filed, given that Mr Moi left power in 2002.
Mr Kihingu had asked the court to declare that his constitutional rights were breached through torture, prolonged detention and unlawful imprisonment after he was allegedly mistaken for a Tanzanian spy. He also sought to quash his conviction, overturn the sentence imposed against him and secure compensation, including aggravated damages.
The former soldier told the court that he joined the Kenya Army in 1976 and later trained in India before being deployed at the 78th Tank Battalion in Lanet.
Military officers arrested him on June 14, 1980, while on duty and detained him for days before taking him to Nairobi for interrogation by military intelligence officers.
The judgment states that when he was handed over to military intelligence officers, he was introduced as: “This is senior private Peter Mosabi Kihingu, the Tanzanian spy.”
According to court filings, he was held incommunicado and tortured for weeks over allegations that he was spying for the neighbouring country.
He alleged that interrogators subjected him to electric shocks, suffocation, beatings, hunger, cold water treatment and other forms of abuse while demanding that he admit to espionage, allegations he maintained were false.
Eventually, he was charged with offences linked to acts prejudicial to the safety of the Republic and giving false information to a public officer.
Former soldier Peter Mosabi Kihingu.
Photo credit: File | Nation Media Group
He claimed he was too weak to understand the proceedings when a guilty plea was entered against him in court in July 1980.
The former soldier said he later tried unsuccessfully to change the plea before he was sentenced to 14 years in prison and transferred to Kamiti Maximum Security Prison.
He told the court he remained isolated in prison and was denied visitation rights before later managing to secretly send a letter to then CID director Noah arap Too detailing his ordeal.
According to the petition, investigations later revealed he had been wrongly accused, and President Daniel arap Moi ordered his unconditional release in April 1987 after he had served six years and four months. Mr Kihingu further claimed he lost his military career and struggled to secure employment after his release.
The Attorney-General opposed the petition through affidavits filed by senior military officers, arguing that the case was filed too late and that critical records and witnesses were no longer available.
The State said military files linked to the case had been destroyed after the expiry of the statutory 10-year records retention period under Defence Forces standing orders.
It also argued that some officers mentioned in the petition had died, making it impossible to properly test or rebut the allegations raised by the former soldier.
The Attorney-General further maintained that Mr Kihingu had failed to provide medical evidence supporting claims of torture and argued that his arrest and prosecution were lawful.
The court acknowledged that constitutional claims are not automatically barred by time limits but said courts must still consider whether delays cause unfair prejudice to the opposing party.
“The consequences of this delay to a fair trial are obvious in terms of evidential prejudice since even the respondent is entitled to a fair trial,” the court ruled, in a judgment that could shape how courts handle delayed torture and human-rights claims tied to the military and security crackdowns, especially where key witnesses have died, and official records cannot be traced.
“The persons of interest that the petitioner is mentioning as critical witnesses who would have corroborated material facts are no longer available. They are all dead,” it added.
The court also rejected Mr Kihingu’s explanation that fear of reprisals during the Moi-era regime prevented him from filing the case earlier.
It noted that the Moi administration left office in 2002 and that Kenya later established the Truth, Justice and Reconciliation Commission to investigate historical abuses, including torture claims linked to the Nyayo House era.
“In 2010, the current Constitution was birthed, opening up new frontiers of freedom and the spirit of fear was erased from the hearts of Kenyans, who were guaranteed their rights in unimaginable proportions,” the court observed.
It concluded that allowing the petition to proceed despite the extensive delay would expose the state to an unfair trial and amount to abuse of the court process.
