The State has been ordered to compensate Bernard Onunga with Sh2 million after he became a victim of police brutality during the opposition protests that shook Kisumu in 2017. Mr. Onunga was awarded general damages after he was shot by anti-riot police, leaving his face disfigured during the violent demonstrations ahead of the repeat presidential election that year.
The Supreme Court had ordered a repeat presidential election on October 26, 2017, following the nullification of Jubilee’s Uhuru Kenyatta's victory. However, Raila Odinga, leader of the then-opposition party, the National Super Alliance (NASA), called on his supporters to boycott the polls, leading to widespread violence in several parts of Nyanza, Western Kenya, and Nairobi.
During the chaos, many lives were lost, and numerous others were injured. Among those caught in the violence was Mr. Onunga, who was shot and left for dead. He had left his home in Kapere Village, Chemilil Ward, Kisumu County, intending to charge his phone at a nearby trading center. As he neared Ogen Primary School, he encountered a crowd fleeing from armed police officers. Seeking refuge, he hid behind a building at the shopping center, only to be shot by a police officer who left him critically injured.
Mr. Onunga recounted that he neither provoked nor engaged with the police officer. Unarmed, he was traumatized by the ordeal, as he was left bleeding profusely from his left ear and limbs. He was later rushed to Jaramogi Oginga Odinga Teaching and Referral Hospital, where he was admitted for three days.
In a petition filed on April 13, 2023, Mr. Onunga listed the Inspector General of the National Police Service and the Attorney General as the primary respondents. The Independent Policing Oversight Authority (IPOA) and the Kenya National Commission on Human Rights (KNCHR) were named as interested parties.
Dr. Lucy Ombok, who testified in court, confirmed that Mr. Onunga had been shot by a police officer known to him. Upon examination, Dr. Ombok noted that Mr. Onunga had a healed wound on his left jaw, which was grievous and dated back five years.
In defense, Superintendent of Police Mr. Joshua Nyasimi testified that on the day of the incident, officers from the prison department were assigned to escort public service vehicles trapped between Kopere and Awasi when they encountered a road barricaded with rocks. While attempting to clear the road, they were confronted by a hostile crowd throwing stones. Mr. Nyasimi asserted that the officers managed to retreat without using live ammunition, insisting they only had blanks.
The defense further argued that without a ballistic report proving the petitioner was shot by the police and due to a "fairly conflicting" medical report, it could not be definitively concluded that Mr. Onunga was shot by police.
However, Kisumu High Court Judge, Justice Roselyne Aburili, ruled in favor of Mr. Onunga. After reviewing all submissions, she found that the evidence presented by Mr. Onunga and corroborated by the medical testimony substantiated his claim of rights violations. The judge also criticized the police for failing to provide a substantial explanation regarding the shooting, pointing out the lack of evidence, such as an Occurrence Book entry or armory records, to support their claim that only blanks were used.
Justice Aburili concluded that Mr. Onunga's constitutional rights had been violated. Considering the nature of the violation and the extent of the injuries suffered, which disfigured his face and led to job loss, the court awarded him Sh2 million in general damages for pain, suffering, and constitutional rights violations. The petitioner was also awarded the costs of the petition.