A fresh attempt by victims of the 1998 Nairobi bomb blast to obtain compensation from the State has failed, after the High Court ruled that there was no proof showing the government failed in its duty to prevent the attack.
In a decision issued on Wednesday, Justice Lawrence Mugambi dismissed a petition filed in 2021, finding that the applicants did not demonstrate that the State ignored warnings or acted negligently before the bombing occurred.
The petitioners had accused the government of failing to protect the right to life, arguing that intelligence warnings existed and that authorities failed to respond. They also claimed the State did not take proper steps to secure the country’s borders despite the risk of an attack being known or expected.
While the court agreed that the State has a duty to safeguard life, Justice Mugambi said that responsibility alone was not enough to impose liability without evidence.
“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.
He explained, however, that the law requires those bringing a case to support their claims with proof. The judge pointed out that the petitioners did not meet this requirement.
Quoting the Evidence Act, Justice Mugambi noted that “the burden of proof lies on the person who desires the court to believe in the existence of facts,” adding that the applicants were required to show, on a balance of probability, that specific intelligence existed and that the State failed to act on it.
The court found that no such evidence had been presented. Justice Mugambi observed that the reports relied upon were not backed by sworn affidavits from their authors, and there was no clear demonstration that Kenya had received advance intelligence and ignored 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.”
The State had also challenged the case on the grounds that it was filed more than two decades after the bombing, arguing that the delay caused prejudice. In response, the petitioners said they had been engaging the government for years and were consistently assured that compensation was being considered, noting that constitutional matters are not strictly limited by time.
Justice Mugambi sided with the petitioners on this issue.
“I find the explanation given by the petitioners for the delay in filing this petition satisfactory,” he said, adding that the State had not clearly explained how it was affected by the delay.
“The claim of prejudice was made, but it was not articulated," the judge stated.
The court also reviewed foreign court decisions cited by the petitioners, including cases from the United States. Justice Mugambi said those rulings did not support the claim that the Kenyan government was negligent.
“I have gone through the files, and I did not find any finding by American courts attributing neglect to the Kenyan government,” he said, noting that the material could not be used to establish responsibility.
Requests asking the court to declare the State culpable and compel the President to appoint a commission of inquiry were also rejected. Justice Mugambi ruled that such actions fall within the powers of the Executive.
“To grant this prayer would amount to meddling with the independence of another independent officer,” he said.
The judge further declined a request seeking orders directing the Attorney General to report on efforts to pursue reparations from foreign states, warning that such steps could affect foreign relations and were beyond the Attorney General’s mandate.
After reviewing all arguments, the court dismissed the petition in full.
“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.
