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Court of AppealPartially AllowedNot stated in the judgment as provided

Kemoi v State & another (Civil Appeal E043 of 2022) [2023] KECA 1542 (KLR)

Court of Appeal of Kenya
15 December 2023
2,971 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal more than quintupled damages for a man tortured in police custody, signalling courts will pay real compensation for state brutality.

What this practically means

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Executive summary

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The appellant, while in the custody of the 3rd respondent following his arrest on 17th October 2004 for robbery with violence, alleged that he was tortured by a police officer, was denied medical treatment despite court orders that he be taken to hospital, and was left confined to a wheelchair with a permanent disability. The High Court found that his rights under Articles 27(1), 28 and 51(1) & (3) of the Constitution had been infringed and awarded him Kshs 1,500,000/- in general and aggravated damages. The appellant appealed solely on quantum, seeking enhancement to Kshs 15,000,000/-, while the respondents maintained he had not proved the violations. The Court of Appeal held, first, that the appeal was limited to damages: in the absence of a cross-appeal by the respondents, there was no legal basis to revisit the finding on liability. As a first appeal, the Court re-evaluated the evidence. Applying the settled principle from Butt v Khan and Kenya Bus Services v Gituma that an appellate court interferes with quantum only where the trial court acted on a wrong principle, misapprehended the facts, or reached a wholly erroneous estimate, the Court found the award inordinately low. It had regard to the permanent, irreversible disability, the appellant's age, his impending release and inability to engage in gainful employment, and comparable awards in Peter M. Kariuki (Kshs 15 million) and Denish Gumbe Osire (Kshs 10 million). The Court enhanced the award to Kshs 8,000,000/- with interest from the date of the High Court judgment, allowed the appeal, and awarded costs to the appellant. Judgment delivered at Nakuru on 15th December 2023 by Musinga, Sichale and Ochieng, JJA.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant is entitled to an enhancement of the award of damages made by the trial court for violation of his fundamental rights

Key legal issues

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01

Whether the award of Kshs 1,500,000/- for violation of the appellant's rights (torture and permanent disability while in custody) was inordinately low

Holding

Yes; the award was enhanced to Kshs 8,000,000/- with interest from the date of the High Court judgment

Reasoning

The Court, guided by Selle v Associated Motor Boat Co., re-assessed the evidence as a first appeal. Applying the Butt v Khan and Kenya Bus Services principles, it found the award represented an entirely erroneous estimate given the permanent disability, the appellant's age, his impending release and loss of capacity for gainful employment, by comparison with comparable awards such as Peter M. Kariuki and Denish Gumbe Osire.

p. 6
02

Whether the Court could revisit the finding on violation of constitutional rights (liability)

Holding

No; the appeal was limited to quantum and there was no cross-appeal on liability

Reasoning

The respondents, though maintaining that the appellant had not met the threshold for violation, had not filed a cross-appeal. The Court therefore confined itself to the award of damages, the only matter properly before it, and declined to consider whether liability was properly founded.

p. 5

Legal principles established

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  • An appellate court will not interfere with the quantum of damages awarded by a trial court unless it acted on a wrong principle, misapprehended the facts, or the award is so inordinately high or low as to be a wholly erroneous estimate.
  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own conclusions, making due allowance for the fact that it neither saw nor heard the witnesses.
  • In the absence of a cross-appeal, an appellate court has no legal basis to review a determination of the trial court, such as on liability, that no party has challenged.

Court orders

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  1. 1.Award of Kshs 1,500,000/- by the High Court enhanced to Kshs 8,000,000/- with interest from the date of the judgment of the High Court
  2. 2.Appeal allowed with costs to the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
First appeal to the Court of Appeal against the quantum of damages awarded by the High Court in a constitutional petition

Relief refused

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Enhancement to the Kshs 15,000,000/- sought by the appellant

The Court found a lower global award sufficient in the circumstances

p. 6

Exemplary damages as a distinct head

The Court awarded a global sum rather than separate exemplary damages

Costs

The appeal is allowed with costs to the appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, we find that an award of ksh 8,000,000/- with interest from the date of the judgment of the High Court will be suficient compensation in the circumstances. Accordingly, the appeal is allowed with costs to the appellant.
p. 6Final orders - enhancement of damages and costs
The appeal before us is limited to the award of damages, and as such we shall not delve into the threshold for violation of constitutional rights.
p. 5Scope of appeal absent cross-appeal
an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law
p. 5Standard for interfering with quantum
An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled.
p. 4Duty of first appellate court
we are persuaded that the award of ksh1,500,000/- was inordinately low, given that the appellant sufiered a permanent disability.
p. 6Basis for enhancement

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, "Kemoi v State & another (Civil Appeal E043 of 2022) [2023] KECA 1542 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1542/eng@2023-12-15

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