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Court of AppealDismissedCivil Appeal No. 90 of 2015· [2017] KECA 512 (KLR)

Kariuki Kiboi v Attorney General [2017] KECA 512 (KLR)

Court of Appeal
9 June 2017
2,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to increase a Kshs 2 million constitutional damages award, ruling that unproven injuries and a settled trial judge's discretion must stand.

What this practically means

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Executive summary

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The appellant, Kariuki Kiboi, was one of six petitioners who obtained declarations before Majanja J. that agents of the State arbitrarily arrested, detained and tortured them during the 1980s and 1990s, in violation of sections 72 and 74 of the repealed Constitution. The High Court awarded each petitioner a global sum of Kshs. 2,000,000 as general damages, the judge lamenting that he had no oral, medical or expert evidence on the nature or extent of injuries. The appellant alone appealed, seeking an increase to Kshs. 11,000,000, contending the judge failed to consider the length of his detention. The other petitioners accepted and were paid their awards; the appellant himself confirmed he had been paid Kshs. 1.9 million. The Court of Appeal (Githinji, Nambuye and Karanja, JJ.A.) dismissed the appeal in a single judgment. It reaffirmed the settled principles from Butt v Khan, Kemfro Africa v Lubia and Gicheru v Morton that an appellate court will not disturb a damages award unless it is so high or low as to be an erroneous estimate, or the judge acted on a wrong principle or took into account irrelevant factors or ignored relevant ones. Drawing on Dendy v University of the Witwatersrand and Gitobu Imanyara v Attorney General, the Court held that constitutional remedies are primarily vindicatory and deterrent rather than compensatory, and that the absence of particularization and proof of injury disentitled the appellant to a larger global award. The Court noted, obiter, the question whether a party who has fully executed and accepted a judgment may still challenge it. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Principles governing appellate interference with a trial judge's award of damages

Holding

The award stands unless it is so inordinately high or low as to be an erroneous estimate, or the judge took into account an irrelevant factor, left out a relevant one, or proceeded on a wrong principle.

Reasoning

The court restated the locus classicus in Butt v Khan and Kemfro Africa Ltd v Lubia, and Gicheru v Morton: the appellate court must be satisfied the judge took into account an irrelevant factor or left out a relevant one, or that the amount is wholly erroneous as an estimate of the damage. The trial judge was guided by the nature of the violations, precedent and the delay in filing suit, so no basis for interference was shown.

p. 4
02

Purpose of constitutional damages

Holding

Constitutional damages are primarily vindicatory and deterrent, not compensatory; the quantum is an exercise in rationality and proportionality dependent on the facts of each case.

Reasoning

Relying on Dendy v University of the Witwatersrand and Gitobu Imanyara v Attorney General, the court held that a constitutional remedy punishes derogation and sends a message that fundamental rights will not be trampled upon, but cannot fully compensate the victim. The appropriateness of an award depends on rationality and proportionality, and in some cases a declaration alone suffices. The trial judge's global award fell within this discretion.

p. 4
03

Effect of absence of medical or expert evidence on quantum

Holding

In the absence of particularization and proof of injuries, the appellate court will not increase a global award even where the underlying violations are undisputed.

Reasoning

The trial judge lamented having no oral, medical or expert evidence to assess the nature and extent of injury, and arrived at a global figure 'doing the best he could'. The Court found that while the appellant must have suffered psychological torment, the degree was unproven; mere assertion that a 60-day detention merited more than awards to shorter-detained co-petitioners would defeat the vindicatory purpose of constitutional damages.

p. 5

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so high or so low as to represent an erroneous estimate, or the judge proceeded on a wrong principle or misapprehended the evidence in some material respect.
  • The primary purpose of a constitutional remedy is not compensatory or punitive but to vindicate the rights violated and to prevent or deter future infringements; damages for constitutional violations are discretionary public law remedies limited by what is appropriate and just.
  • A bare assertion that a longer detention merited a larger award than that made to co-petitioners is insufficient; particularization and proof of injury are required to upset a global constitutional damages award.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party bears its own costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya (repealed)section 72 (1), (3), (5)
  • Constitution of Kenya (repealed)section 74 (1)
  • Constitution of Kenyasection 84
  • Constitution of Kenya (Supervisory jurisdiction and protection of fundamental Rights and Freedoms of the Individual) High Court Practice Procedure Rules 2006section 84(1), (2), (3)

Cases cited (8)

  • ANARITA KARIMI NJERU V REPUBLIC (No.1)
    1979 KLR 154
  • BUTT VS KHAN
    (1981) KLR 349
  • KEMFRO AFRICA LIMITED T/A MERU EXPRESS SERVICE GATHOGO V A. M LUBIA AND OLIVE LUBIA
    (1982-88) KAR 727
  • Ilango vs Manyoka
    (1961) E.A 705
  • Lukenya Ranching and farming Co-operative society Limited vs Kavooloto
    (1970) E.A 415
  • Gicheru v Morton and Another
    (2005) 2 KLR 333
  • Dendy v University of the Witwatersrand, Johannesburg & others
    (2006) 1LRC 291
  • Gitobu Imanyara and 2 others vs Attorney General
    (2016) eKLR
On appeal from
High Court of Kenya at Nairobi
Petition No. 33 of 2010 (consolidated with Petition No. 564 of 2005)
Jurisdiction invoked
First appeal against quantum of damages in a constitutional petition; appeal brought under the Court of Appeal's appellate jurisdiction (Notice of Appeal under the Court of Appeal Rules), from an application under section 84 of the retired Constitution rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kariuki Kiboi v Attorney General [2017] KECA 512 (KLR)", Case Analysis (2017). Civil Appeal No. 90 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/512/eng@2017-06-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.