Ondimu & another v Commissioner of Police & 3 others
The bottom line
#Court partly allowed appeal but dismissed most claims for lack of proof.
What this practically means
#The Supreme Court ruled that the Court of Appeal failed to consider all arguments raised by the appellants. However, the Court dismissed most of the claims because the appellants did not prove they suffered psychological torture—they only mentioned shuttling between cities and feeling anguish. They also failed to show that police actions caused their business losses. Special damages require strict proof. The Court refused to change the amount of damages awarded by the High Court.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the superior courts below failed to consider and pronounce themselves on all the reliefs sought, and if so
- 2.Whether the 1st appellant’s right to dignity and not to be subjected to physiological torture under articles 28 and 29(d) of the Constitution was violated by the respondents
- 3.Whether the appellants established loss of business/income by the 2nd appellant and if so, whether it is attributable to the respondents?
- 4.Whether the court should review the quantum of damages issued or apportion the general damages between the appellants.
Key legal issues
#Whether the superior courts below failed to consider and pronounce themselves on all the reliefs sought
The Supreme Court found that the Court of Appeal failed to address the prayer for a declaration that the institution of CMCRC No. 188 of 2011 was illegal and a violation of articles 28 and 29(d) of the Constitution, and therefore the Supreme Court proceeded to determine that issue itself.
The Court examined the judgments of the High Court and Court of Appeal and confirmed that the specific prayer regarding the illegality of the criminal case and violation of dignity/psychological torture was not addressed. Citing Dhanjal Investments Limited v Kenindia Assurance Company Limited, the Court held that failure to consider a ground of appeal leaves litigants in uncertainty, and the appellate court must then address it. The Court then proceeded to determine the issue on its merits.
Whether the 1st appellant's right to dignity and not to be subjected to psychological torture under articles 28 and 29(d) of the Constitution was violated
The Supreme Court declined to make any declaration on the alleged violation because the Director of Public Prosecutions, who instituted the criminal case, was not a party to the proceedings, and the appellants failed to establish psychological torture with sufficient particularity.
The Court noted that the DPP has a separate constitutional mandate under Article 157 and was not a party to the suit. Awarding damages for the institution of the criminal case would condemn the DPP unheard, violating natural justice. Additionally, the Court held that the 1st appellant did not establish the specific elements of psychological torture as defined in the Prevention of Torture Act and the Wamwere case; merely stating he shuttled between Nakuru and Mombasa and suffered anguish was insufficient.
Whether the appellants established loss of business/income by the 2nd appellant attributable to the respondents
The Supreme Court agreed with the lower courts that the appellants failed to establish the nexus between the respondents' actions and the decline in business, and that special damages must be strictly proved.
The Court reviewed the evidence of PW2, the certified accountant, and the audited accounts showing a drop in sales from Kshs. 54,450,000 in 2010 to Kshs. 12,800,000 in 2011. However, the Court found that there was no evidence tying this decline specifically to the respondents' actions, such as evidence of the alleged negative publicity. The Court applied the principle that he who asserts must prove (sections 107-109 of the Evidence Act), and since the appellants did not discharge their initial burden, it did not shift to the respondents.
Whether the court should review the quantum of damages or apportion the general damages between the appellants
The Supreme Court declined to interfere with the quantum of damages or to apportion them between the appellants, finding no misdirection by the High Court and that the evidence on the 2nd appellant's status was unclear.
The Court applied the principle from Mbogo & Another v Shah that an appellate court should not interfere with a judge's discretion unless there is misdirection or clear error. The Court found no such error. On apportionment, while the Court agreed that the claims were distinguishable, it noted that the evidence on whether the 2nd appellant was still in existence was unclear and uncertain, and therefore declined to apportion the award.
Legal principles established
#- A court must consider and decide each ground of appeal; failure to do so leaves litigants uncertain.
- A litigant claiming psychological torture must specify exactly how and when it occurred.
- Special damages must be strictly proved with a direct link between the defendant's conduct and the loss.
- An appellate court should not interfere with a judge's discretion on damages unless there is clear misdirection or error.
- The Director of Public Prosecutions must be heard before awarding damages for wrongful prosecution.
Court orders
#- 1.The Petition dated October 30, 2023 is partially successful only to the extent that the Court of Appeal erred in failing to consider all the grounds of appeal advanced by the appellants.
- 2.For the avoidance of doubt, all other prayers in the appeal are dismissed.
- 3.Each party shall bear its own costs.
- 4.We hereby direct that the sum of Kshs.6,000/=, deposited as security for costs upon lodging of this appeal, be refunded to the appellants.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nakuru
- Civil Appeal No. E044 of 2022
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Declaration that the respondents violated the 1st appellant’s constitutional rights under articles 28 and 29(d) of the Constitution
The Director of Public Prosecutions, who instituted the criminal case, was not a party to the proceedings, and the appellants failed to establish psychological torture.
A declaration that each petitioner is entitled to a distinct and separate award of general damages
The evidence as to the status of the 2nd appellant was unclear and uncertain, and the court declined to interfere with the High Court's award.
A declaration that the award of general damages of Kshs.3,000,000/= is manifestly too low
The appellants failed to establish any misdirection in the exercise of the High Court's discretion to award damages.
A declaration that the loss of Kshs.28,113,722/= suffered by the 2nd appellant is attributable to the respondents’ actions
The appellants failed to establish the nexus between the respondents' actions and the decline in business; special damages must be strictly proved.
An order awarding the appellants separately enhanced general damages
The court declined to interfere with the quantum or apportionment of damages.
An order that the respondents pay to the 2nd appellant Kshs.28,113,722/= with interest
The claim for loss of business and income was not proved.
Costs
Each party shall bear its own 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.
Key timeline
#Practical implications
#Address all grounds of appeal
When drafting appeals, ensure every ground is argued and the court addresses it. If the Court of Appeal ignores a ground, the Supreme Court may step in to decide it. For constitutional claims like psychological torture, plead specific facts—dates, locations, and conduct—not just general hardship.
Prove direct link to business loss
If you sue for lost profits due to a government action, you must provide evidence connecting the drop in sales to that action. Audited accounts showing a decline are not enough. You need proof of negative publicity or other direct impact. Consider gathering customer statements or media reports.
Be specific when claiming torture
If you believe your constitutional rights against torture or psychological harm have been violated, you must describe in detail how and when it happened. Vague statements about stress or inconvenience will not succeed. Keep a diary of incidents, witness names, and medical reports to support your case.
Frequently asked questions
#How do you prove psychological torture in Kenya?+
You must state exactly how and when the torture occurred, not just that you felt anguish or stress. Courts look for specific conduct, duration, and impact. General descriptions like shuttling between towns are not enough.
What is the standard for proving special damages in Kenya?+
Special damages must be strictly proved. You need evidence that directly links the defendant's actions to the loss claimed. For example, showing a decline in sales is not enough unless you also prove the decline was caused by the defendant's conduct.
Can the Court of Appeal ignore some grounds of appeal in Kenya?+
No. The Court of Appeal must consider and decide each ground of appeal. If it fails to address a ground, the Supreme Court can step in and determine that issue itself, leaving the litigants uncertain.
When can the Supreme Court interfere with damage awards in Kenya?+
The Supreme Court will only change a damage award if the lower court misdirected itself or made a clear error that caused injustice. It will not interfere simply because it might have awarded a different amount.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gitagama & 3 others v Wanjigi & another (Civil Appeal 388 of 2019) [2026] KECA 694 (KLR)[2026] KECA 694 (KLR)25 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Ondimu & another v Commissioner of Police & 3 others", Case Analysis (2024). Petition E031 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/46/eng@2024-08-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.