On 11 September 2025, survivors of post-election sexual violence (PESV) and civil society organizations filed a partial appeal to the Supreme Court of Kenya. The appeal challenges the Court of Appeal’s 8 August 2025 judgment in Civil Appeal E645 of 2021, which acknowledged the State’s constitutional and international obligation to protect citizens from sexual and gender-based violence (SGBV), but failed to provide full justice and reparations to survivors.
The consequences of this gap in justice are painfully illustrated by one co-petitioner’s story. Late one night in January 2008, a noisy crowd awakened a sleeping woman by banging on her door demanding to be let inside. She opened the door of the house but fled into the bedroom, locking the door behind her. Two men with their faces painted to obscure their features burst through the door. They spoke to each other in an unfamiliar language. As they ransacked the apartment, they came upon her sisters and the eight children sleeping there and instructed them not to move. They returned to the woman’s room where they beat her and threatened to kill her. They threw her on the ground, gashed her thighs and upper body with their nails, and one by one, they raped her.
She fell unconscious, and when she woke up, her sisters and the children were surprised to see that she was still alive. She and her family were subsequently taken to another location, where she received some basic medical care from Red Cross officials. When she went to a hospital for a follow-up visit, she learned that she had become HIV-positive. Only the thought of her children prevented her from committing suicide.
Even as she returned to her home and work, she has kept her HIV status secret for fear that neighbors and co-workers would ostracize her if they knew the truth of her condition. Yet, she has held onto one thing: hope. “I hope the court believes my story,” she said, explaining that she had looked to the Court of Appeal to deliver justice. With that hope unfulfilled, she now turns to the Supreme Court as her last resort for acknowledgment and redress.
In its August ruling, the Court of Appeal recognized electoral-related sexual violence as torture and crimes against humanity under the Rome Statute. It also found that the State had prior knowledge of the widespread violations. However, it restricted compensation to survivors attacked by State agents, excluding those violated by civilians during the unrest despite the Court’s own finding that the State had a duty to protect all citizens. This double standard unfairly placed an impossible burden on survivors to prove that the State specifically failed them in individual cases, while overlooking the State’s constitutional obligations to respect, protect, and fulfill fundamental rights, including the rights to dignity, equality, freedom from torture and cruel, inhuman or degrading treatment, and security of the person.
The new Supreme Court appeal – filed by eight survivors of post-election violence alongside four civil society organizations, including PHR – challenges this narrow approach, asking the Court to:
- Hold the State accountable for failing to protect survivors attacked by non-State actors.
- Provide compensation and structural remedies such as medical care, psychological support, rehabilitation, and public acknowledgement of harm caused.
- Properly interpret the mandate of the Independent Policing Oversight Authority (IPOA) to investigate continuing violations.
The appeal emphasizes that the State’s duties to protect, investigate, prosecute, and provide reparations are independent obligations; not conditional on survivors filing reports in the chaos of unrests or overcoming technical barriers. Survivors are asking the Court to go beyond symbolic compensation and affirm their right to comprehensive reparations, including health care, rehabilitation, acknowledgment, and guarantees of non-repetition.
For enquiries, contact Suzanne Kidenda (PHR) skidenda@phr.org
More information about Constitutional Petition No. 122 of 2013 is available here.
Physicians for Human Rights (PHR) is a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. Learn more here.