Total impunity: Defence PS Mariru ignores court orders to pay soldiers

Defence Principal Secretary Patrick Mariru is a man under siege for failure to comply with three court orders related to former soldiers.

The orders issued by Justice John Chigiti are compensation claims by soldiers who were accused of taking part in the failed 1982 coup, but were later exonerated by the courts.

The amounts being demanded by the ex-soldiers in the three cases are in excess of Sh280 million due to the interest accrued since the judgments were entered.

Mariru’s defiance of the court orders contrasts with the promise by President William Ruto in his 2022 election manifesto to obey court orders.

Dr Ruto pledged to restore the public trust he claimed had been lost during the Jubilee administration, which he served as second in command all through, due to the Executive’s disregard for court orders.

Ruto argued that the Jubilee government had also lost public trust due to the signing of treaties and contracts that go against the law, the interests of the country, and foreign policy, but his administration would correct that by “determining, within 60 days, all judgements and orders against the Kenyan government, and creating a plan to make sure that the government abides by all court rulings.”

The issue of obeying court rulings and orders also featured when Ruto brought in allies of the Orange Democratic Movement (ODM) into the Kenya Kwanza government.

When President Ruto and ODM leader Raila Odinga signed an agreement between their two parties, obeying court decisions was item number 10 on it.

“The Rule of Law requires the government and its officers to obey court orders and only challenge the validity of judicial pronouncements through legal processes,” reads the agreement.

While this is the case on paper, the reality is that Kenya Kwanza and the broad-based government have refused to obey court orders on paying damages to some 30 ex-soldiers.

The former soldiers had been implicated in the 1982 failed coup and were subsequently arrested, detained, tortured and relieved of their duties.

This defiance has left PS Mariru a man on the run, from police who have been directed to arrest him and courts who are after him.

In one of the three cases, Mariru is wanted for failing to pay some ten ex-Kenya Air Force soldiers Sh134 million.

The petitioners in the case were David Gitau, Shaban Mwadosho, Johana Kisorio, Hassan Mohammed, Daniel Koi, Khamisi Mwamgute, Peter Mungai, Jacob Mwaliko, Alfred Mwathethe, and Graham Wambaa.

They filed a petition in 2012 in which they claimed that after their arrest in 1982, they were subjected to torture and degrading treatment.

They argued that their arrest was based on mere suspicion since they were part of the Air Force.

The 10 ex-soldiers said they were stripped naked in public and forced to walk on their knees on the concrete floor.

They added that they had been kicked, whipped, bludgeoned, and transported in military trucks while naked and in full view of the public.

In their petition, the soldiers said this treatment violated their rights to dignity, legal protection and freedom from inhumane, cruel and degrading treatment.

In 2013, Justice Isaac Lenaola awarded the ten men Sh5.5 million each, plus interest and costs of the case.

As of 2023, the award plus interest had grown to Sh134.7 million.

In the second case, Mariru is wanted for failing to pay another group of ex-soldiers more than Sh42 million.

The ex-soldiers are Gerald Juma, Humphrey Kalama, Peter Mwangi, James Gitai, David Gikuyu, and Francis Ngure, Lawrence Kiarie, John Thairu, Placide Mwakisachi and Obadiah Maza.

The case saw Justice Chigiti issue another warrant of arrest against PS Mariru on July 31, 2024, that was to be executed by the Military Police.

"The warrants shall be executed by the officer in charge at Military Police Department of Defence (DOD) Hurlingham," ruled Chigiti.

A court officer, Gladys Nyachiro, testified in court that when she took the warrant to the Military Police they refused to take it saying they were not authorized to take court orders.

The 10 men won the case against the Ministry in 2015 when Justice Lenaola also awarded them different amounts which were to attract 12 per cent interest annually and has now grown to more than Sh42 million.

Justice Lenaola found that their rights had been violated following their arrest in 1982 after they were suspected in taking part of the failed coup.

The 10 were arrested between August 1 and 4, 1982 after a failed attempt to overthrow the government with the judge saying that had been subjected to inhumane treatment.

They argued that their arrest was based merely on the fact that they were affiliated with Kenya Airforce and had been held incommunicado.

The ex-soldiers in their case said that they had been tortured and received cruel, inhuman, and degrading treatment between August 1, 1982, and March 1983.

They recounted in court how they had been stripped naked in public, forced to walk on concrete floors on their knees, and subjected to whipping, kicking and taunting by Kenya Army and Prison officers.

In the contempt proceedings against the PS they said that money to pay them had been budgeted for in the 2021/22 Financial Year supplementary budget but they never received a penny.

In the third case where PS Mariru is wanted for contempt of court also involves a group of 10 ex-soldiers who were awarded Sh23.5 million in February 2012.

The men are James Mwangi, Antony Ndiangui, John Kipsang Leting, Sammy Kahura, Robert Chelugo Miningwos, Simon Njiru, Titus Tumbo, Stephen Mwangi, Deavans M. Chilelo and Mohamed Omar.

The case was heard by Justice Mumbi Ngugi and in awarding them she said the damages would attract 12 per cent interest until payment in full.

Justice Ngugi noted that some of the ex-soldiers were not at work on the fateful day and that they never had a chance to articulate their innocence since they were never arraigned in court to defend themselves.

“The awards can only be an acknowledgement that their rights were violated and can never fully atone for the wrongs inflicted on them by the state,” she said.

The 10 men testified that they had been held at the Kamiti and Naivasha Maximum prisons where they were locked up together with violent offenders.

Upon release from prison, the soldiers said that that they were relieved of their duties on the ground that the services were no longer required or that the Air Force had been disbanded.

They told Justice Ngugi that they had found it hard to get any meaningful employment due to stigma associated for the alleged role in the failed coup.

As of November 2023, the award plus interest had grown to Sh68.8 million.

Calls and text messages to Judith Pareno, the Justice, Human Rights and Constitutional Affairs Principal Secretary went unanswered on what she is doing to ensure compliance with the orders.