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Court of AppealPartially AllowedCivil Appeal No. 289 of 2016· [2020] KECA 647 (KLR)

Bernard Kihiu Matama v Attorney General [2020] KECA 647 (KLR)

Court of Appeal
22 May 2020
3,401 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal against the quantum of damages awarded by Lenaola, J. in a constitutional petition in which the appellant established that his right to freedom from torture under Section 74(1) of the Repealed Constitution was violated by Special Branch officers over eight days in October 1990 at Buru Buru Police Station, Pangani Police Station and the Nyayo House torture chambers. The High Court declared the violations and awarded Kshs. 400,000 as general damages but declined exemplary damages. The appellant challenged the adequacy of the award and the refusal of exemplary damages, seeking Kshs. 4,000,000 under each head. The Court of Appeal, comprising Koome, Gatembu Kairu and J. Mohammed, JJ.A, in a single judgment of the court, restated its duty as a first appellate court to re-evaluate evidence, and the principle that a damages award will be disturbed only where it rests on wrong principles or is an entirely erroneous estimate. Comparing comparable torture precedents in which awards ranged between Kshs. 1,500,000 and Kshs. 2,500,000, the Court found the Kshs. 400,000 award an erroneous estimate, set it aside, and substituted a global award of Kshs. 2,000,000. On exemplary damages, the Court applied the Halsbury's and Rookes v Barnard categories and, finding no error in the trial judge's exercise of discretion, declined to interfere. The appeal partially succeeded; the appellant was awarded the costs of the appeal. The judgment binds lower courts on the standard for appellate interference with constitutional damages and the purpose of constitutional remedies as vindicatory, deterrent and proportionate rather than compensatory or punitive.

Key legal issues

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01

Adequacy of the award of general damages for torture

Holding

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.

Reasoning

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.

p. 4
02

Exemplary damages in constitutional petitions

Holding

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.

Reasoning

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.

p. 4
03

Duty of a first appellate court

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The award of Kshs. 400,000 as general damages is set aside
  2. 2.A global award of Kshs. 2,000,000.00 as general damages is substituted
  3. 3.The appellant is awarded the costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)
  • Repealed Constitution of KenyaSection 74(1)

Cases cited (20)

  • Chomondely vs. Republic
    (2008) eKLR
  • Gerald Gichohi & 9 Others vs. Attorney General
    Petition No. 487 of 2012
  • Koigi Wamwere vs. Attorney General
    [2015] eKLR
  • Dr. Odhiambo Olel vs. Attorney General
    HCCC No. 366 of 1995
  • Mary Njoki vs. John Kinyanjui Mutheru
    [1985] eKLR
  • Watt v Thomas
    [1947] AC 484
  • S. M. v E. N. B.
    [2015] eKLR
  • Jenniffer Muthoni Njoroge & 10 others v AG
    [2013] eKLR
  • Jennifer Muthoni Njoroge and Others vs. the Attorney General
    [2012] eKLR
  • Benedict Munene Kariuki & 14 others vs Attorney General
    HC Petition No 722 of 2009
  • Benedict Munene Kariuki & 13 others vs. the Attorney General
    High Court Petition No. 722 of 2009
  • Samwel Waweru Kariuki vs Attorney General
    [2013] eKLR
  • Butt vs. Khan
    [1981] 1 KLR 349
  • Jivanji vs. Sanyo Electrical Co. Ltd
    (2003) KLR 425
  • Harun Thungu Wakaba & 20 others vs. Attorney General
    Nairobi HCCC No 1411 of 2004
  • Rumba Kinuthia vs. Attorney General
    Nairobi HCCC No 1408 of 2004
  • Gitobu Imanyara & 2 others vs. Attorney General
    [2016] eKLR
  • Lucas Omoto Wamari vs. Attorney General
    CA No. 213 of 2014
  • Njuguna Githiru vs. Attorney General
    [2020] eKLR
  • Rookes vs. Barnard
    [1964] 1 ALL ER 367
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

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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, "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.