Ochieng v Attorney General
The bottom line
#Supreme Court upholds Kshs 100,000 award for police torture but dismisses journalist's other claims.
What this practically means
#The Supreme Court dismissed an appeal by journalist John Ochieng Omondi. He was arrested after writing articles about a police officer. The Court found his arrest was lawful and his rights to freedom of expression and fair treatment were not violated. However, police beatings while in custody amounted to torture. The Court upheld the Kshs 100,000 damages already awarded and refused to increase them.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the appeal
- 2.Whether the appellants' rights under Articles 25, 29, 33, 48, 49, and 51 of the Constitution were violated
- 3.Whether the appellant is entitled to enhanced damages of Kshs. 15,000,000/=
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal where the constitutional issues were raised and determined in the courts below.
The Court has jurisdiction because the superior courts interpreted and applied Articles 25, 29, 33, 48, 49, and 51 of the Constitution, which were central to their reasoning and disposition.
The Court examined the record and found that the superior courts were called upon to interpret and apply specific constitutional provisions. These provisions were central to the reasoning and disposition by the courts below and remain the basis of the arguments advanced by the appellant before this Court. The constitutional question was properly developed through the judicial hierarchy.
Whether the appellant's rights under Articles 29, 49, and 51 of the Constitution were violated by his arrest and detention.
The arrest was lawful and the appellant was duly informed of the reasons for his arrest; his rights as an arrested person were observed.
The Court examined the Occurrence Book extract and witness statements showing the appellant was arrested on allegations of criminal libel and informed of the reason. The appellant conceded that his advocate, family, and journalists visited him during detention. The Court found no procedural impropriety or denial of due process.
Whether the appellant's right under Article 25(a) of the Constitution (freedom from torture) was violated.
The respondent violated the appellant's non-derogable right to freedom from torture by subjecting him to beatings while in police custody.
The Court considered the medical evidence (P3 form) and eyewitness testimony that the appellant was beaten by police officers while in custody, sustaining injuries to his cheeks, chest, and abdomen. The conduct met the constitutional threshold of torture under Article 25(a) and the Convention Against Torture.
Whether the appellant's right to freedom of expression under Article 33 of the Constitution was violated.
The appellant failed to establish a violation of Article 33.
The evidence showed that The Star Newspaper successfully published and circulated the appellant's articles. The appellant did not demonstrate that the respondent interfered with, restricted, or curtailed the publication or distribution of the newspaper.
Whether the appellant is entitled to enhanced damages of Kshs. 15,000,000/-.
The appellant is not entitled to enhanced damages; the award of Kshs. 100,000/- is upheld.
The Court found that the appellant's case was distinguishable from Imanyara and Wamwere, which involved prolonged detention and sustained torture resulting in permanent injury. Here, the arrest was lawful, the injuries were not severe, and no permanent disability resulted. The appellant did not cite comparable cases with higher awards. The Court found the award not inordinately low.
Legal principles established
#- Constitutional issues must be raised and decided in lower courts before the Supreme Court can hear an appeal as of right.
- The Supreme Court must decide an appeal on its merits even if the respondent does not oppose it.
- General damages for constitutional violations will not be increased unless the award is clearly too low compared to similar cases.
- An arrest is lawful if the person is promptly told the reason for arrest, as required by Article 49 of the Constitution.
- Torture under Article 25(a) requires proof that state agents inflicted physical pain or suffering.
- Freedom of expression is not violated if the state does not interfere with publication or distribution.
Court orders
#- 1.The petition of appeal dated 15th December, 2025, and filed on 16th December, 2025, is hereby dismissed
- 2.The award of general damages of Kshs. 100,000/- is hereby upheld
- 3.We hereby direct that the sum of Kshs 6,000/- deposited as security for costs upon lodging of this appeal be refunded to the depositor
- 4.There shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya
- Civil Appeal No. E108 of 2021
- Jurisdiction invoked
- Article 163 (4)(a) of the Constitution
Relief refused
#Enhanced damages of Kshs. 15,000,000/-
The appellant's case is distinguishable from Imanyara and Wamwere; the arrest was lawful, injuries were not severe, and no prolonged detention or permanent injury was established.
Declarations of violation of rights under Articles 29, 33, 35, 47, 48, 49, and 51 of the Constitution
The Court found no violation of these articles; Articles 35 and 47 were raised for the first time before the Supreme Court and were not considered by the courts below.
Costs
There shall be no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The petition of appeal dated 15th December, 2025, and filed on 16th December, 2025, is hereby dismissed;
The award of general damages of Kshs. 100,000/- is hereby upheld;
There shall be no orders as to costs.
An appellant must demonstrate that the constitutional issues were both raised and determined in the courts below.
Notwithstanding the lack of opposition, this Court has a duty to consider the facts and determine the appeal on its merits.
We find no reason to interfere with those findings and are satisfied that the appellant has established the use of force that resulted in the infliction of physical pain upon his person.
The appellant’s case is distinguishable from Imanyara (supra) and Wamwere (supra), particularly with respect to the issues of prolonged detention and sustained torture resulting in permanent physical injury, which in those authorities warranted the awards.
Key timeline
#Practical implications
#Raise constitutional issues early
When appealing to the Supreme Court under Article 163(4)(a), ensure the constitutional issue was both raised and determined in the High Court and Court of Appeal. Introducing a new constitutional question at the Supreme Court will be rejected. Draft pleadings carefully to include all constitutional arguments from the start.
Police conduct and media liability
Businesses, especially media houses, should note that lawful arrests for alleged criminal libel do not automatically violate constitutional rights. However, any physical abuse by police during detention will be treated as torture. Ensure employees know their rights and document any mistreatment immediately to support claims.
Know your rights during arrest
If arrested in Kenya, you must be told the reason promptly. You have the right to a lawyer and family visits. Physical beating by police is torture and you can claim damages. But the amount may be modest unless you suffer severe or permanent injury. Keep medical records and witness statements to strengthen your case.
Frequently asked questions
#Can I appeal to the Supreme Court of Kenya on a new constitutional issue?+
No. Under Article 163(4)(a), the constitutional issue must have been raised and decided in the High Court and Court of Appeal. You cannot introduce a new constitutional question for the first time at the Supreme Court.
What damages can I get for police torture in Kenya?+
General damages for torture are awarded based on the severity of injuries and comparable cases. In this case, Kshs 100,000 was upheld for beatings that caused no permanent disability. Higher awards require evidence of prolonged detention, severe injury, or permanent harm.
Is my arrest lawful if the police tell me the reason in Kenya?+
Yes, if you are promptly informed of the reason for your arrest, it is lawful under Article 49 of the Constitution. The police must also allow you access to a lawyer and family. Failure to do so may violate your rights.
Can a journalist be arrested for publishing articles in Kenya?+
Yes, if the articles amount to criminal libel or other offences. However, the arrest must be lawful and the journalist must be informed of the reason. The state cannot interfere with publication itself, but can arrest for alleged crimes after publication.
Cite this brief
#Cite this brief
Caselaw, "Ochieng v Attorney General", Case Analysis (2026). Petition E051 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/32/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.