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Court of AppealPartially AllowedCivil Appeal No. 253 of 2017· [2020] KECA 929 (KLR)

Njuguna Githiru v The Attorney General

Court of Appeal
24 January 2020
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
2,577 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal more than doubled compensation for a Nyayo House torture victim, showing courts will raise constitutional damages awards that are too low.

What this practically means

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Executive summary

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The appellant petitioned the High Court claiming that Special Branch officers tortured him for eight days in April 1989 at the Nyayo House torture chambers, holding him incommunicado, beating him, and subjecting him to cold water and starvation. Lenaola, J. found the violations proved and awarded Kshs.1,000,000.00 as compensation, but declined exemplary damages. The appellant appealed solely on quantum, contending the award was too low and that exemplary damages should have been granted, ultimately seeking Kshs.5,000,000.00 in general damages and Kshs.3,000,000.00 exemplary damages. The respondent urged that the award was adequate and discretionary. The Court of Appeal, applying the settled principles in Butt v Khan and Kemfro Africa that an appellate court interferes with damages only where the award is inordinately high or low or the judge proceeded on wrong principles, surveyed comparable awards for Nyayo House and similar constitutional violations ranging from Kshs.1,500,000.00 to Kshs.2,500,000.00 and beyond. It held the Kshs.1,000,000.00 award, made in April 2016, inordinately low and an erroneous estimate, and substituted a global award of Kshs.2,500,000.00 with interest from the date of the High Court judgment. On exemplary damages, the Court found the Judge's discretion was properly exercised, there being no demonstrated propensity for repetition of the violations, and declined to disturb that finding. The appeal therefore partially succeeded: quantum enhanced, exemplary damages refused, and the appellant awarded the costs of the appeal.

Key legal issues

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01

Interference with quantum of damages for constitutional violations

Holding

The award of Kshs.1,000,000.00 made in April 2016 was inordinately low and an erroneous estimate, warranting enhancement to Kshs.2,500,000.00.

Reasoning

The Court reviewed comparable awards for Nyayo House torture and similar constitutional violations, which ranged from Kshs.1,500,000.00 to Kshs.2,500,000.00 and higher. Applying the Butt v Khan and Kemfro Africa principles, it found the award fell below the range of comparable awards and was manifestly low, justifying substitution with a global award of Kshs.2,500,000.00.

p. 3
02

Exemplary damages for constitutional violations

Holding

The High Court did not err in declining exemplary damages; its discretion was properly exercised on the basis that no propensity for repeating the violations was demonstrated.

Reasoning

The Court applied the principle that an appellate court will not disturb an exercise of judicial discretion unless an irrelevant factor was taken into account or a relevant one ignored. The Judge had considered the absence of any propensity for repetition of the violations, and no wrong principle or misapprehension of evidence was shown.

p. 3

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.
  • 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; the award must be appropriate and just.

Court orders

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  1. 1.Set aside the award of Kshs.1,000,000.00 and substitute therefor an award of Kshs.2,500,000.00
  2. 2.Interest to accrue from the date of judgment of the High Court until payment in full
  3. 3.Appellant to have the costs of this appeal

Authorities

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Legislation

  • Constitution of Kenya (repealed)section 23
  • Constitution of Kenya, 2010

Cases cited (17)

  • Koigi Wamwere vs. Attorney General
    [2015] eKLR

    Comparable awards for Nyayo House violations; award of Kshs.2,500,000.00 found patently inadequate and enhanced to Kshs.12 million

  • Dr. Odhiambo Olel vs. Attorney General
    Kisumu HCCC No. 366 of 1995

    Exemplary damages are supplementary to normal damages and awardable without reference to proved actual loss

  • Siewchand Ramanoop vs. The AG of Trinidad and Tobago
    P.C Appeal No. 13 of 2004

    Constitutional award is discretionary; should not be a windfall nor nugatory

  • Fuller vs. AG of Jamaica
    C.A 91/1195

    Award at the discretion of the court

  • Benedict Munene Kariuki & 14 others vs. Atty Gen
    Petition No. 722 of 2009

    Declined aggravated damages noting burden to the innocent taxpayer and improved political environment

  • Abok James Odera T/A A.J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR

    Primary role of a first appellate court to re-evaluate and re-assess the record

  • Butt vs. Khan
    [1981] 1 KLR 349

    Appellate court will not disturb a damages award unless inordinately high or low or wrong principles applied

  • Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs. A.M. Lubia and Olive Lubia
    (1982-88) 1 KAR 727

    Principles for disturbing quantum: irrelevant factor considered, relevant one omitted, or wholly erroneous estimate

  • Gitobu Imanyara & 2 others vs. Attorney General
    C. Appeal No. 98 of 2014 [2016] eKLR

    Constitutional damages limited by what is appropriate and just; remedy vindicates rights and deters future infringement

  • Wachira Weheire vs. AG
    HCCC No. 1184 of 2003

    Kshs.2,500,000.00 awarded for 16 days confinement at Nyayo House

  • Miguna Miguna vs. AG
    H.C. Petition No. 16 of 2010

    Kshs.1,500,000.00 awarded for torture, inhuman treatment and violation of liberty

  • Harun Thungu Wakaba & others vs. AG
    HCCC No. 1411 of 2004

    Sums of Kshs.1,000,000.00 and Kshs.3,000,000.00 awarded to Nyayo House torture victims

  • Jennifer Muthoni Njoroge and Others vs. the Attorney General
    [2012] eKLR

    Awards of Kshs.1,500,000.00 to Kshs.2,000,000.00 each for torture and unlawful detention of 7 to 14 days

  • Benedict Munene Kariuki & 13 others vs. the Attorney General
    High Court Petition No. 722 of 2009

    Kshs.2,000,000.00 each for torture, cruel and degrading treatment and detention of 7 to 72 days

  • Lucas Omoto Wamari vs. Attorney General
    CA No. 213 of 2014

    Upheld award of Kshs.2,000,000.00 for constitutional violations

  • John vs. MG Ltd.
    [1996] 1 All E.R. 35

    Exemplary damages go beyond compensation and are meant to punish the defendant

  • Ken Odondi & 2 other vs. James Okoth Omburah T/A Okoth Omburah & Company Advocates
    [2013] eKLR

    Cited John v MG Ltd on the punitive purpose of exemplary damages

On appeal from
High Court of Kenya at Nairobi
H.C. Pet. No. 204 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment and decree of the High Court in a constitutional petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Njuguna Githiru v The Attorney General", Case Analysis (2020). Civil Appeal No. 253 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/929/eng@2020-01-24

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