Stephen Ouma Ambogo v Director of Public Prosecutions [2020] KECA 635 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that constitutional rights protections in the 2010 Constitution generally do not apply to events that happened before it came into force.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in relying on the original petition where no leave to amend was granted
The court found no error: there was no indication on the record that leave to amend was ever granted, so the trial court correctly determined only the original petition dated 15th May 2008.
Although the amended and re-amended petitions appeared on the record, the court found no leave for the amendments was ever granted. The re-amended petition made fundamental changes, importing provisions of the 2010 Constitution. The trial court's decision to confine itself to the original petition was therefore unimpeachable, and the court declined to find fault with it.
Whether Article 50(4) of the Constitution, 2010 applies retrospectively
Article 50(4) does not apply retrospectively; its language is forward-looking and it cannot aid a person whose evidence-related complaint arose before the Constitution commenced.
Applying the Supreme Court's binding jurisprudence on retroactivity, the court held that the language of Article 50(4) contains no retrospective ingredients. Further, the exclusionary rule in Article 50(4) applies only where evidence is obtained in violation of rights and its admission would render the trial unfair; here there was no evidence that the State procured evidence in violation of the appellant's rights, and allegations of denial of counsel and media orchestration were unproven and uncontroverted.
Whether the award of Kshs 50,000.00 for detention beyond 24 hours should be enhanced
The court upheld the award, finding the trial court properly exercised its discretion and the quantum was neither inordinately low nor an erroneous estimate.
The court agreed the appellant's rights under Section 77(3) of the repealed Constitution were infringed by detention of about 36 hours. However, constitutional damages are discretionary public law remedies aimed at vindication and deterrence, not compensation. Applying the settled principles on appellate interference with damages, and considering the circumstances of the detention, the court found no basis to disturb the award and rejected the enhancement ground.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for having neither seen nor heard the witnesses.
- Article 50(4) of the Constitution does not apply retrospectively; whether a constitutional provision applies retrospectively is determined solely by the language of the Constitution.
- An appellate court may only interfere with an award of damages where the trial court applied wrong principles, took into account irrelevant factors or left out relevant ones, or arrived at an inordinately high or low figure.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Petition No 281 of 2008
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court exercising constitutional (petition) jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Ouma Ambogo v Director of Public Prosecutions [2020] KECA 635 (KLR)", Case Analysis (2020). Civil Appeal No 132 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/635/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.