Bernard Kihiu Matama v Attorney General [2020] KECA 647 (KLR)
The bottom line
#Kenya's Court of Appeal raised a torture victim's compensation fivefold, confirming courts can increase low constitutional damages awards on appeal.
What this practically means
#Executive summary
#Key legal issues
#Adequacy of the award of general damages for torture
The award of Kshs. 400,000 for eight days of torture at the Nyayo House chambers was an erroneous estimate, far below comparable awards, and was set aside and substituted with a global award of Kshs. 2,000,000.
The court, as a first appellate court, re-evaluated the unchallenged evidence of torture. Applying the principle that an award will be disturbed where it is an entirely erroneous estimate, the court compared comparable torture cases (Jennifer Muthoni Njoroge, Benedict Munene Kariuki, Lucas Omoto Wamari, Njuguna Githiru) where awards ranged from Kshs. 1,500,000 to 2,500,000 for similar or shorter detention periods. Although the appellant was held for only eight days, the Kshs. 400,000 award was far below the range and was therefore set aside and substituted.
Exemplary damages in constitutional petitions
The refusal to award exemplary damages was a legitimate exercise of discretion and was not disturbed; exemplary damages are confined to limited categories, and the trial judge found no demonstration of a propensity for the violations to be repeated.
The court reiterated the Halsbury's categories and Rookes v Barnard, confining exemplary damages to oppressive, arbitrary or unconstitutional action by government servants, profit-making conduct, or statutory authorization. The trial judge had faulted the police for gross violations but found no demonstrated propensity for repetition. Since no misdirection or erroneous exercise of discretion was shown, the Court declined to interfere with that part of the judgment.
Duty of a first appellate court
As a first appeal, the Court had a duty to re-evaluate the evidence and determine the matter afresh, while bearing in mind that it did not hear or see the witnesses testify.
Relying on Mary Njoki v John Kinyanjui Mutheru and S. M. v E. N. B., the court restated that an appellate court may review the conclusions of a trial judge but exercises that jurisdiction with caution, interfering only where conclusions rest on no evidence, on a misapprehension of the record, or where the judge demonstrably acted on wrong principles. This framed the standard for assessing the quantum challenge.
Legal principles established
#- An appellate court will not disturb an award of damages by the High Court unless the judge proceeded on wrong principles or misapprehended the evidence in material aspects, arriving at a figure inordinately high or low such as to represent an entirely erroneous estimate.
- The primary purpose of a constitutional remedy is not compensatory or punitive but to vindicate the violated rights and to prevent or deter future infringements; the determination is an exercise in rationality and proportionality.
- Exemplary or punitive damages are awarded only in limited categories: oppressive, arbitrary or unconstitutional action by servants of government; conduct calculated to make the defendant a profit exceeding the compensation payable; or where authorized by statute.
- Exemplary and general damages for violation of fundamental rights and freedoms ought not to be granted in the same petition where the violations arise from the same facts; a global figure should be granted.
Court orders
#- 1.The award of Kshs. 400,000 as general damages is set aside
- 2.A global award of Kshs. 2,000,000.00 as general damages is substituted
- 3.The appellant is awarded the costs of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 208 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (no specific constitutional or statutory article is invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernard Kihiu Matama v Attorney General [2020] KECA 647 (KLR)", Case Analysis (2020). Civil Appeal No. 289 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/647/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.