After more than two decades of waiting for justice and redress, victims and families affected by the 1998 Nairobi bomb blast suffered a major setback after the High Court dismissed their compensation claim against the government.
The petition, filed in 2021 by Kituo cha Sheria together with more than 32 survivors and relatives of victims, sought compensation and the establishment of a commission of inquiry into the State’s alleged failure to act on intelligence before the August 7, 1998 terrorist attack on the United States Embassy in Nairobi.
In a judgment delivered at the Milimani Constitutional Court, Justice Lawrence Mugambi ruled that the Kenyan government could not be held liable for the attack, which killed 213 people and injured more than 5,000 others.
Justice Mugambi found that the petitioners failed to prove that the State had prior knowledge of the planning or execution of the bombing, or that it ignored any actionable intelligence.
“Without evidence to establish that the government failed to act on intelligence, the substratum of the petition cannot hold. Therefore, the petition lacks merit and is dismissed for lack of merit,” the judge ruled.
The petitioners had argued that the government ignored warnings and failed to strengthen border security ahead of the bombing.
They sought declarations that the State violated victims’ rights by failing to detect, prevent or stop the attack, compensation for survivors and families, and orders compelling the Attorney General to pursue international claims against Sudan, Iran or Al-Qaeda assets.
In its defence, the State denied having any specific or actionable intelligence prior to the bombing, stating that it only had general information about heightened terrorist threats in the region.
Justice Mugambi agreed with the State, holding that the evidence presented by the petitioners lacked credibility and probative value.
“It cannot be established, on the basis of the material placed before this court, that the government was aware of the attack or that it failed to act on any intelligence,” the court ruled.
The judge faulted the petitioners for relying on unproven and hearsay material drawn from publications and reports whose authors neither testified nor filed affidavits.
“The authors of these reports and publications were neither caused to testify nor did they file affidavits indicating the contents of those reports on alleged prior intelligence information. The facts relied upon to arrive at the conclusions in those reports cannot be verified. Basically, it is hearsay evidence,” Justice Mugambi said.
The court also rejected reliance on findings from United States court proceedings that held Sudan and Iran liable for the attacks.
“In my view, the U.S. statements in the reports cannot be relied upon as substantive evidence to prove disputed evidentiary facts that the Government of Kenya failed to act on prior intelligence,” the judge stated.
“In any event, I have gone through the three statements carefully, and I do not find anywhere where the American courts made findings that the Government of Kenya was negligent or complicit in the U.S. Embassy terrorist attacks by Al-Qaeda terrorists.”
Justice Mugambi noted that U.S. courts clearly placed responsibility for the attacks on the Republic of Sudan.
On constitutional claims, the judge ruled that no violations had been proved.
“The court finds that the petitioners failed to prove that the respondents acted in a manner that violated the rights of the persons who died in the bomb attack. There is therefore no liability on the part of the respondents,” he declared.
The court also dismissed the prayer seeking to compel the Attorney General to advise the President to establish a commission of inquiry, ruling that the power lies solely with the President.
“This court feels restrained to take such actions… I find that the political question doctrine applies on all fours in relation to the aforementioned prayers,” he added.
Following the ruling, victims’ lawyer John Mwariri expressed disappointment saying the judgment failed to recognise the suffering endured by survivors and families for over 25 years.
“We respectfully disagree with the findings of the court.Our clients have waited for justice for over 25 years, and this judgment does not address the core issue of state responsibility to protect its citizens,”Mwariri said.
“We have instructions to appeal, and we are confident that the appellate court will re-examine the evidence and the constitutional questions raised in this case,” the lawyer said
On August 7, 1998, al-Qaeda operatives detonated a massive truck bomb outside the U.S. Embassy in downtown Nairobi, killing 213 people and injuring more than 5,000 other most of them Kenyan civilians.
Minutes later, a second bomb exploded at the U.S. Embassy in Dar es Salaam, Tanzania, killing 11 people and injuring about 85.
The Nairobi blast collapsed the neighbouring Ufundi Building, incinerated a commuter bus on Haile Selassie Avenue and shattered windows within a half-mile radius, causing severe injuries to hundreds.
