Two businessmen whose restaurant was razed in the 2007/08 post-election violence have lost their quest for Sh6.6 million as compensation for special and general damages from the state.
Justice John Mativo of the High Court in Mombasa said Mr Alexander Kariithi and Mr John Muthui, who operated Turkey Bayse restaurant in Kiembeni, Mombasa, had failed to demonstrate how their rights were violated.
The court said they did not prove that police were aware of the impending attack and, if they were, had failed to take the necessary steps to deter the crime.
“There is no iota of evidence to show that police had prior knowledge of the attack,” Justice Mativo said.
The court also noted that no evidence was provided to the effect that before or during the attack police were called and failed to respond.
“Even during the attack, there is no evidence to show that the petitioners or persons acting on their behalf reported to the police either physically or through a telephone call and the police failed to respond,” he ruled.
The businessmen had sued the Attorney-General, the permanent secretary in the office of the President and the internal security minister.
The businessmen argued that, until December 30, 2007, they were residents of Mombasa operating athe restaurant, and that the respondents were obligated by the Constitution to protect them and their property.
They said that owing to the respondents’ laxity their business premises were invaded, vandalised and set on fire by an organised group of youths on account of their ethnic backgrounds.
They told the court that their business had an annual profit of Sh176,425 and was expected to continue operating profitably into the future but because it was destroyed, they had to sell the land where it stood and move away.
Mr Kariithi and Mr Muthui also said they suffered fear, pain and anguish as they waited for law enforcers to arrive in vain and watched their business looted and burnt to the ground.
Because their fundamental rights and freedoms had been violated, they argued, they were entitled to compensation for the loss.
For his part, the AG told the court that the 2007/08 post-election violence was spontaneous and the police did everything they could to control the situation.
The AG also said that no receipts had been provided to justify the petitioner’s claim, and that their petition was defective, bad in law and should be dismissed.
The petition was filed in 2012 and the court noted the long time it had stayed without being determined.
“The petition has been pending since April 4, 2012, a long period by any standards which should prick the conscience of all those who care about the need for speedy resolution of court disputes,” noted Justice Mativo.