Litigation on State Due Diligence Obligation to Prevent Violence against Women in Public Transport and Associated Spaces in Kenya by Enacting Gender-Sensitive Laws and Policies

By Winfred Odali

87% of commuters in Kenya have either witnessed or experienced gender-based violence (GBV) in the public transport sector. This is according to a rapid assessment report published in June 2021 by the Kenya Youth Generation Equality Consortium Report on Sexual Harassment in Kenya Public Transport. There have been instances in the public domain of women being subjected to harassment and other forms of violence and humiliation in the public transport spaces. However, the State only adopts ad-hoc reactions and piecemeal reforms when there is a public outcry. Many other cases of violence in public transport and associated spaces go without any action being taken by the authorities.

On 15 January 2025, the High Court of Kenya at Milimani delivered a judgment in HCCHRPET/E538/2022 – Wairimu Muthoni Wachirah & Centre for Rights Education and Awareness (CREAW) v Super Metro, the Attorney General & 9 Others, where it held that the Respondents had violated the 1st Petitioner’s fundamental rights and freedoms under Articles 27, 28, 29(c), 29(f), 39(1) and 46 of the Constitution of Kenya; these are, the right to equality and non-discrimination, the right to dignity, right to freedom and security of the person, which includes the right to be free from violence, freedom from cruel, inhuman or degrading manner, freedom of movement and consumer rights. ISLA was acting as advisor to counsel for the 2nd Petitioner organization, Centre for Rights Education and Awareness (CREAW).

The 1st Petitioner, Wairimu Muthoni Wachirah, filed this case at the Constitutional and Human Rights Division of the High Court of Kenya alleging violation of women’s mobility rights. She was harassed, verbally abused, physically assaulted, robbed and thrown out of a public service vehicle operated by Super Metro by the driver. She reported the matter to various state authorities including the Kenya Police, the Directorate of Criminal Investigations, the Director of Public Prosecutions, the Ministry of Transport, the Ministry of Interior and Coordination of National Government, the National Transport Service Authority among others, but no action was taken. Her story was published by various media outlets including the Saturday Nation but she received no recourse.

In its judgment, the Court held the 1st and 2nd Respondents vicariously liable for the indignity and violence meted on the 1st Petitioner and ordered them to compensate the 1st Petitioner Kshs 420,000. The Court also ordered them to pay for costs. However, the Court on the flipside held that the police had sufficiently investigated the matter. The Court also refrained from making any orders requiring the State to put in place laws and policies to protect women from violence in public transport and associated spaces since it would amount to breach of the doctrine of separation of powers. Regarding this part of the judgment, ISLA is filing an appeal at the Court of Appeal in Kenya.

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