Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR)
The bottom line
#Kenya's Court of Appeal five-folded a businessman's compensation to Kshs 5 million for a raid on his bar, but his Kshs 32 million stock claim failed for lack of proper proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the Kshs 32,000,000/= claim for destroyed stock was recoverable as special damages
The claim failed because the loss was not specifically pleaded in the petition and was not proved to the required standard; the supporting annexure was unverified.
Common law rules requiring special damages to be specifically pleaded and proven apply to constitutional petitions. The Appellant's breakdown (PNK8, 'Pema Wines Spirits Stock Count & Value') did not indicate its source or maker, and the costing was unsupported by documents showing purchase or acquisition of the items or their price. Special damages must be proved on a balance of probabilities by verifiable evidence demonstrating precise calculations, which was absent here.
Whether the global award of Kshs 1,000,000/= in general damages was inordinately low
Yes – the trial judge failed to factor in compensation for the proved destruction of the Appellant's property; the award was set aside and substituted with Kshs 5,000,000/=, punitive damages being appropriate given the wanton destruction.
While the award was adequate to vindicate the violation of the Appellant's rights, the trial judge did not adequately factor in compensation for the destruction of property, which was proved, and gave no indication of the factors taken into account. The destruction was wanton, making this an appropriate case for punitive damages against the Respondents' agents.
The applicable principles for awarding damages in constitutional petitions
Compensation under Article 23(3) may include general, special, nominal and punitive damages; comparable common law measures guide assessment; general damages are discretionary and only for proven, not presumed, loss.
Drawing on Fose, Ramanoop and Carey v Piphus, the Court held that comparative jurisprudence limits general damages in constitutional cases to proven damages, not presumed damages. Common law rules of proof apply absent specific statutory rules for constitutional compensation. Punitive damages serve penal, deterrent and vindicatory functions in gross constitutional violations.
Legal principles established
#- Special damages in constitutional petitions must be specifically pleaded and proved by verifiable evidence demonstrating precise calculations; the common law rules of proof apply absent specific statutory rules regulating compensation for constitutional violations.
- An award of general damages in constitutional petitions is discretionary, depends on the circumstances of each case, and may be granted as compensation for proven loss; punitive damages may be appropriate for wanton constitutional violations.
- An appellate court may disturb the quantum of damages only where the trial judge took into account an irrelevant factor, left out a relevant one, or the amount is so inordinately low or high as to be a wholly erroneous estimate of the damage.
- On a first appeal, the Court is not bound by the trial court's findings of fact and may reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal partially allowed to the extent of setting aside the award of general damages of Kshs 1,000,000/= by the trial Judge
- 2.Substituted award of general damages of Kshs 5,000,000/= as compensation for violation of the Appellant's rights and for the losses he suffered
- 3.All other orders in the judgment of the trial Court dated 13th May 2017 upheld, save as modified or qualified by the findings in this judgment
- 4.Respondents to jointly and severally meet the Appellant's costs of this appeal
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi H.C. Petition No. 323 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate jurisdiction (Court of Appeal Act); appeal against quantum in a constitutional petition decided under Articles 22 and 23 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Windsor Drycleaners Ltd & 3 others v Muthaiga Road Trust Co. Ltd & 3 others[2026] KECA 1819 (KLR)25 Sept 2026applied
- Criticos v Attorney General & 2 others (Environment and Land Petition E010 of 2025) (Environment and Land) [2026] KEELC 1155 (KLR)[2026] KEELC 1155 (KLR)26 Feb 2026
- Irungu v Hayer Marquis Limited & 2 others (Environment and Land Petition E034 of 2021) [2025] KEELC 6602 (KLR)[2025] KEELC 6602 (KLR)30 Sept 2025
- Kenya Wildlife Service v Sea Star Malindi Limited (Civil Appeal E018 of 2022) [2024] KECA 364 (KLR)[2024] KECA 364 (KLR)12 Apr 2024
Cite this brief
#Cite this brief
Caselaw, "Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR)", Case Analysis (2021). Civil Appeal (Nairobi) – Memorandum of Appeal dated 10th July 2017, appeal from Nairobi H.C. Petition No. 323 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/328/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.