The petition that has been in the judicial system since January 2013 saw the judiciary on the receiving end of criticism during Rubia’s burial after his lawyer Irungu Kang’ata said courts had delayed delivery of justice.
In the case, the deceased wanted an award of Sh5 billion in general damages.
But Justice Korir said the claim was not backed by support of any local jurisprudence and that only the awards that can be sustained by the economy should be made.
“Claimants in similar circumstances should receive similar awards and any divergence in awards ought to be accompanied by reasons,” he said.
He cited cases of other political detainees such as the late Kenneth Matiba who was awarded Sh15 million, Koigi Wamwere Sh12 million and Peter Kariuki Sh15 million.
“Even taking inflation into account, the award cannot be ramped up to the Sh5 billion prayed for by counsel for the estate of the deceased. It is obvious that what is sought in this petition is mindboggling and I do not think that even the world’s best economies can meet or sustain such awards,” stated Justice Korir.
Mr Kang’ata in his submissions had urged that those who fought for the second liberation of the country should be adequately compensated, while pointed out that over Sh600 billion is lost to corruption annually.
But Justice Korir found that, all that notwithstanding, the proposed figures were beyond comprehension.
“After factoring inflation, and considering that the deceased was detained twice unlike Matiba, I award the estate of the deceased a global sum of Sh17 million as general damages for his unlawful detention, in the first instance, and violation of his constitutional rights and fundamental freedoms in the second instance,” the judge ruled while declining to award the family the exemplary damages.
In his ruling, Justice Korir observed that the State has improved in its respect of human rights and that the taxpayer should not be burdened with heavy awards in claims touching on the public purse.
Rubia moved to court in January 2013. The petition was premised on the facts and events revolving around his arrest and subsequent detention by the government on two separate occasions.
He stated that his arrests and detentions were unlawful and that he was subjected to inhuman and cruel treatment and torture which caused the drastic decline in his health as well as irreversible damage to his political career and business empire.
When serving as MP for Starehe Constituency in February 1987, Rubia was arrested on the false allegation that he was sponsoring and financing Mwakenya in an effort to overthrow the government.
He was kept in detention at Nyayo House for five days and subsequently released without being arraigned in court or any charges being preferred against him.
It was the deceased’s evidence that during the first instance of arrest he was bundled into a car by the Special Branch Police and driven around in circles while blindfolded.
He was not informed of the reason of his arrest nor the offence he was suspected of having committed.
The second instance of his arrest followed a press conference he had called called together with Kenneth Matiba on March 3, 1990 where they urged the government to repeal Section 2A of the repealed Constitution, dissolve Parliament and hold fresh elections devoid of rigging, end the mismanagement of public affairs and institute better socio-economic policies in Kenya.
On July 4, 1990 he was arrested by Special Branch Police officers pursuant to a detention order issued by the Minister for Internal Security and held in a solitary cell, which he later ascertained was at the Naivasha Maximum Prison.
‘KEPT NAKED IN COLD CELLS’
While particularising the inhumane treatment and violations to his right to dignity and freedom, Rubia said he was also kept in long and dark underground cells in solitary confinement.
He was also mistreated at Nyayo House by one Jeremiah Opiyo who made him strip naked and lie on cold ground in very cold cells.
The court heard that Mr Opiyo was in charge of interrogation of detainees and interrogated Rubia twice daily during his detention.
Rubia was denied good nutrition, food and water for many days, forcefully made to lie on a pest-infested mattress and cold ground without sufficient cover, denied good medical treatment and subjected to poor and unhygienic sanitary conditions.
During the second instance, which lasted nine months, he was not allowed to see friends and members of his family on a regular and scheduled basis.
Instead, he was ferried to an unknown destination to meet family members.
He was finally released after nine months as his health had deteriorated and had to seek medical treatment both in Kenya and in the United Kingdom which seriously strained his finances.
As a result of his incarceration by the government, he suffered financial loss due to the collapse of his business and financial ventures, which included Mwamba Distributors Ltd, Giant Printers, Peponi School, Rweru General Stores and directorship in Provincial Insurance (now UAP Insurance), Co-operative Bank and ICDC Investments Co. Ltd.
In response to the petition, the Attorney General filed a replying affidavit sworn on December 22, 2015 by Ambassador Monica Juma who was, at the time the Principal Secretary in the Ministry of Interior and Co-ordination of National Government.
Ms Juma stated that the Kenya Police Service as a professional organ does not perform torture or harassment as part of its mandate and therefore denied the allegation of such violations.
Ms Juma swore that she was not aware of the allegations of torture, harassment, inhuman and degrading treatment as alleged in the petition and that the deceased had failed to prove the same by way of empirical evidence and therefore the allegation should not be entertained by the court.
It was further averred for the Attorney General that the court should disregard the allegations surrounding the deceased’s ill-health as there was evidence by way of a medical report proving that he had recovered from his alleged ailments and was undergoing the normal ageing process.
The AG did not call any witnesses and the replying affidavit of Ambassador Juma was adopted as a defence to the deceased’s claim.