Kariuki Kiboi v Attorney General [2017] KECA 512 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Principles governing appellate interference with a trial judge's award of damages
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.
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.
Purpose of constitutional damages
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.
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.
Effect of absence of medical or expert evidence on quantum
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Each party bears its own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.