Nairobi, Kenya | 11th April 2025
The Court of Appeal has today postponed the delivery of its judgment in Civil Appeal No. E645 of 2021, a decision that has left survivors of sexual violence committed during the 2007-08 post-election violence disheartened and emotionally drained. For survivors who have waited 17 years for justice, this delay is more than procedural, it is deeply personal. It adds yet another layer of uncertainty to a legal journey already marked by prolonged silence and institutional disregard.
The appeal case stems from Constitutional Petition 122 of 2013, which was filed in the High Court by eight survivors of sexual and gender-based violence (SGBV) experienced during the 2007–2008 post-election period, being six females and two males. Three of the female survivors were gang-raped by police officers while the other three females were gang-raped by civilian criminals, and the two male survivors, who were children at the time of the Post-Election Violence, were forcefully circumcised by ethnic militia. The survivors in the case are supported by a coalition of organizations, including the Utu Wetu Trust, Physicians for Human Rights (PHR), the Independent Medico-Legal Unit (IMLU), the International Commission of Jurists – Kenya (ICJ-K), the Coalition on Violence against Women (COVAW), Kenya National Commission on Human Rights (KNCHR), Kenya Human Rights Commission (KHRC), and the Constitution and Reform Education Consortium (CRECO). Two other organisations, Katiba Institute and REDRESS, are enjoined as Amicus Curiae in the case.
In 2020, the High Court issued its judgment in Petition 122 of 2013, awarding KShs. 4 million compensation to four of the survivor-petitioners on the basis that they were violated by police officers and for the State’s failure to investigate and prosecute perpetrators following one reported case where the survivor was raped by a civilian gang. The other four, whose cases involved gang rape and forced circumcision, were dismissed on the basis that they were committed by civilian perpetrators and lacked formal police reports. The Court of Appeal was today expected to address whether survivors violated by civilian criminals, and who did not or could not report violations, due to several factors including breakdown in security, law and order at the time, trauma, stigma, or displacement, still deserve protection and redress from the State. The Court of Appeal was also expected to address the High Court’s reluctance to issue structural orders that would require the State to establish mechanisms for documentation and reparation for all other victims of sexual violence committed during the PEV. You will recall that in 2008 the Commission of Inquiry into the Post-Election Violence, also known as the Waki Commission, recorded 900 cases of SGBV, which it termed as representing only “a tip of the ice-berg”. The Truth Justice and Reconciliation Commission went further to document thousands more of survivors of PEV-related SGBV in 2013. The appeal seeks the court’s intervention to ensure that the State identifies and provides mechanisms for reparation for all these victims, beyond the eight survivors participating in this specific case.
These survivors are not seeking justice solely for themselves. They are standing up on behalf of many others, thousands across Kenya who continue to suffer in silence. Their pursuit of accountability is driven by a collective hope: that Kenya would recognize the full extent of pain, harm and disruption of lives caused by electoral violence and take steps to guarantee non-repetition. Instead of closure, survivors face persistent delay. The postponed judgement extends a legal process that began in 2013 and concerns violations from 2007. For 17 years, these individuals have navigated a legal system that has been slow to hear them, slower to act, and reluctant to fully confront the State’s failure to protect its citizens from sexual and gender-based violence.
Adding to the gravity of this moment is the continued failure by the State to pay the KShs. 4 million compensation awarded by the High Court to each of the four survivor-petitioners in December 2020. A Certificate of Costs was submitted to the Ministry of Interior in August 2023, yet no payment has been made. The Ministry of Interior and the Office of the Attorney General have remained silent. Survivors are being forced to beg for what has already been granted to them by law. This adds onto the, almost KShs. 1 billion of unpaid compensation owed to survivors of the former Nyayo House Torture Chambers.
This inaction reflects a broader institutional failure. In 2015, then-President Uhuru Kenyatta announced a KES 10 billion Restorative Justice Fund to address the plight of victims of the 2007-08 election-related violence. However, to date, this fund remains non-operational. Draft Regulations and a policy for implementation of the Fund have been sitting in the Office of the Attorney General, and the National Treasury, since 2017. They are yet to be adopted by the Cabinet or tabled before Parliament.
Attempts by survivors and civil society organizations to engage the Office of the Attorney General have been unsuccessful, and survivors continue to wait, not just for funds, but for the State to acknowledge their pain and suffering.
Even more concerning are credible reports suggesting that a portion of the KES 10 billion fund may have already been disbursed, even though no public accounting has been made available. The reports indicate that Ksh 3.1 billion was allocated in the 2015/2016 budget. However, survivors and civil society remain in the dark about how these funds were disbursed, who the beneficiaries were, and what criteria guided the allocation, if any. We cannot talk about justice if transparency is absent.
While the State pleads budgetary constraints, we see lavish spending on political travel and campaigns, where public officials fly across the globe and traverse the country at enormous cost to the people of Kenya. These same public officials fail to act when it comes to compensating and providing holistic reparation to victims of gross human rights violations. There is no shortage of resources, only a shortage of political will.
This delay is part of a pattern: Kenya has not reckoned with its violent past. Survivors had hoped this case would mark a turning point, a national commitment to truth, justice, and reparation. Instead, the list of violations and victims continues to grow: 2015, 2017, 2022, 2023, 2024 and 2025 electoral- and protest-related violence, have all seen sustained incidences of state-driven violence, involving sexual and gender-based crimes and other gross human rights violations, such as abductions, enforced disappearances and torture. By failing to deliver justice for past wrongs, the State enables the cycles of continuing violations and future harm. The same pattern of delay, is being witnessed in another landmark case, the Baby Pendo Case, which since being initiated in 2022, no plea has been taken by the twelve accused police commanders.
Survivors are not asking for special treatment. They are asking for what the Constitution, the laws of Kenya, and the courts, already guarantee them: recognition, justice, reparation, including compensation, and dignity. This moment must be a wake-up call for all of us.
WE, THEREFORE, URGE FOR THE FOLLOWING IMMEDIATE ACTION:
- That the Court of Appeal expedites and delivers its judgment in Civil Appeal No. E645 of 2021 without further delay. Justice delayed any further will only deepen the harm experienced by victims and survivors.
- The Office of the Attorney General and the Ministry of Interior to immediately release the KES 16 million in compensation awarded to survivors in 2020, in Constitutional Petition 122 of 2013. Court orders must be enforced without excuses.
- The Office of the Attorney General to publicly disclose the status of the 2017 Draft Regulations for implementation of the KShs. 10 Billion Restorative Justice Fund, and present a timeline for their adoption and tabling before Parliament.
- The Office of the Auditor General to initiate a forensic investigation into the disbursement of the KES 10 billion Restorative Justice Fund established in 2015. Kenyans and victims of the 2007-08 election-related violence have a right to know how this public money has been handled.
- The Speaker of the National Assembly to update the country on the status of adoption of the TJRC Report, so as to give effect its full implementation.
- The Government of Kenya to fully implement the Victim Protection Act (2014) and provide sufficient resources and an effective framework to ensure psychosocial support, legal aid, protective services, and reparations for all survivors of gross human rights violations.
Survivors have carried this burden long enough. It is time the nation stands with them. Justice must not only be done. It must be seen. And it must be felt, urgently, fully, and without compromise.
Signed by:
- Coalition on Violence against Women (COVAW)
- Constitution and Reform Education Consortium (CRECO)
- Independent Medico-Legal Unit (IMLU)
- International Commission of Jurists – Kenya (ICJ-K)
- Kenya Human Rights Commission (KHRC)
- Kenya National Commission on Human Rights (KNCHR)
- Physicians for Human Rights (PHR)
- Utu Wetu Trust (UWT)