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Court of AppealPartially AllowedCivil Appeal No 73 of 2012· [2017] KECA 558 (KLR)

Zablon Ombati Ongeri v Attorney General [2017] KECA 558 (KLR)

Court of Appeal of Kenya
27 April 2017
PWP.N. WakiRNR.N. NambuyePKP.O. Kiage
2,490 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that Ksh 10 was an insultingly low award for unconstitutional detention, raising it to Ksh 20,000 and awarding the petitioner costs.

What this practically means

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Executive summary

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This first appeal arose from Nakuru High Court Petition No. 8 of 2010 (Emukule, J.) in which the appellant, having been charged with murder and acquitted under Section 306(1) of the Criminal Procedure Code after the prosecution closed its case, sought declarations and damages for torture and for detention beyond the constitutional period prescribed under the repealed Constitution. The High Court found the continued detention beyond the prescribed timelines unconstitutional but dismissed the torture claim for want of proof, awarding a nominal Ksh 10 and condemning the appellant to pay costs. The Court of Appeal, coram Waki, Nambuye and Kiage, JJ.A, in a single judgment of the court, re-evaluated the evidence as a first appellate court. It held that the trial Judge proceeded on wrong principles by allowing the murder acquittal to weigh on his assessment, treating compensation as 'blood money' and requiring proof of loss of income, thereby arriving at an inordinately low and erroneous estimate. Applying Butt v Khan and Kenya Bus Services v Gituma, the Court interfered with quantum, adopting the Lenaola, J. criteria from Jennifer Muthoni Njoroge and substituting an award of Ksh 20,000 for the Ksh 10 award. The torture claim remained unproved. On costs, applying Supermarine Handling Services and Section 27(1) of the Civil Procedure Act, the Court held the appellant was entitled to costs of the petition since no reason was given for denying them, and also awarded costs of the appeal. The appeal partially succeeded: quantum was varied and costs were granted, but no enhanced award for torture was made. The judgment binds lower courts on the principles governing appellate interference with damages for constitutional violations and on costs following the event where a petitioner proves a violation.

Key legal issues

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01

Interference with quantum of damages for violation of fundamental rights

Holding

The award of Ksh 10 was an inordinately low and erroneous estimate reached on wrong principles, since the trial Judge allowed the seriousness of the murder charge and the acquittal to weigh on his mind; the Court substituted Ksh 20,000

Reasoning

Assessment of damages is a judicial discretion guided by defined principles. Under Butt v Khan and Kenya Bus Services v Gituma, interference is warranted where the judge acts on wrong principles, considers irrelevant factors, or arrives at an entirely erroneous estimate. The trial Judge improperly rewarded the acquittal reasoning by treating compensation as 'blood money', ignoring the appellant's protected liberty rights.

p. 4
02

Criteria for assessing damages for constitutional violations

Holding

The Court adopted Lenaola, J.'s criteria in Jennifer Muthoni Njoroge: the torture inflicted (where applicable), length of unlawful custody, decided cases, and fairness and reasonableness in the circumstances

Reasoning

Finding the Ksh 10 award anomalous, the Court required a principled basis for quantum. The Jennifer Muthoni Njoroge factors fit the case, with the torture limb inapplicable; the length of unlawful detention (one day beyond the 14-day limit after the last statement) anchored the modest substitute award.

p. 4
03

Proof of torture

Holding

The torture claim failed; testimony from the criminal trial was dismissed by the trial court, and no witness was called at the petition hearing to prove torture

Reasoning

Counsel conceded the trial court had dismissed the testimony of PW2 and PW6 on torture and made no finding on it; PW2 attributed the beating to security officers rather than policemen. Without evidence before the petition court, the appellant established only one of his two alleged constitutional infractions.

p. 3
04

Costs where a petitioner succeeds in part

Holding

The trial Judge gave no reason for denying costs to a petitioner in whose favour a constitutional violation was found; the appellant was entitled to costs of the petition and of the appeal

Reasoning

Applying Supermarine Handling Services v Kenya Revenue Authority and Section 27(1) of the Civil Procedure Act, costs follow the event unless there is good reason otherwise. An appellate court interferes where no reasons are given and the order appears wrong. Here no plausible reason supported denying costs to a successful petitioner.

p. 5

Legal principles established

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  • An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence materially
  • A person detained beyond the prescribed constitutional period need not prove loss of earnings to be compensated; detention itself is a constitutional violation meriting redress
  • A trial court that finds a violation of fundamental rights in a petitioner's favour must give reasons if it denies costs; costs follow the event absent good reason to order otherwise

Court orders

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  1. 1.The award of Ksh 10 general damages set aside and substituted with an award of Ksh 20,000
  2. 2.The appellant awarded costs of the petition in the High Court
  3. 3.The appellant awarded costs of the appeal

Authorities

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Legislation

  • Penal CodeSections 203 and 204
  • Repealed Constitution of KenyaSection 72(3), 72(6), 72(3)(b), 72(b), 84(1)
  • Criminal Procedure CodeSection 306(1)
  • Civil Procedure ActSection 27(1)

Cases cited (10)

  • SELLE VS ASSOCIATED MOTOR BOAT CO
    [1968] E.A. 123
  • BUTT V KHAN
    [1981] KLR 349
  • KENYA BUS SERVICES LIMITED VS JANE KARAMBU GITUMA
    (2004) E.A. 91
  • KASSAM V KAMPALA AERATED WATER CO LTD
    [1965] E.A. 587
  • IDI SHABANI V NAIROBI CITY COUNCIL
    [1982-88] 1 K.A.R. 681
  • KIMOTHO & OTHERS V VESTERS & ANOTHER
    [1988] K.L.R. 48
  • JENNIFER MUTHONI NJOROGE & 10 OTHERS V ATTORNEY GENERAL
    [2012] eKLR
  • JABANE V OLENJA
    [1986] KLR 661
  • PETER M. KARIUKI V ATTORNEY GENERAL
    [2014] eKLR
  • SUPERMARINE HANDLING SERVICES V KENYA REVENUE AUTHORITY
    [2010] eKLR
On appeal from
High Court of Kenya at Nakuru
Nakuru H.C. Petition No. 8 of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (implied; not expressly pleaded in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Zablon Ombati Ongeri v Attorney General [2017] KECA 558 (KLR)", Case Analysis (2017). Civil Appeal No 73 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/558/eng@2017-04-27

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