Alfred Musembi Gideon & 3 others v Rachael Tabitha Kitheka

3. The respondent further alleged that the appellants stormed into her shop forcing her to flee after which they stole assorted goods therein all valued at Kshs. 45,420.00. the respondent further averred that the appellants were the defendants in Motomo Senior Resident magistrate’s Court Criminal Case No. 61/2013. The respondent then filed this suit claiming general damages and the recovery of Kshs. 45,420.00. the 1st, 2nd, 3rd, 4th and 5th appellants filed a joint statement of defence on 9/4/2016 and denied all the allegations in the plaint and put the respondent on strict proof. The appellants admitted that they were charged with a criminal offence but they were subsequently acquitted of the charges. They urged the court to dismiss the suit with costs. 4. The respondent amended her plaint to include the 6th & 7th (defendants) appellants. The case proceeded before the learned magistrate and he rendered his Judgment on 15/06/2023 awarding the appellant Kshs. 200,000/= general damages for assault and costs of the suit. 5. The appellants were dissatisfied with the said judgment and filed this appeal based on the following grounds on the memorandum of appeal dated 13/7/2023: 6. 1. That the learned trial magistrate erred in law and fact in awarding that the appellants jointly and severally should pay and award of Kshs. 200,000/= despite acquittal of the offence of assault against the respondent, and 2. Misdirected himself in failing to take into account that a charge an assault was proved against one accused person and that the other accused persons were discharged therefore an award of mental torture and anguish fails, and 3. Erred in law and fact and misdirected himself by failing to consider the evidence adduced by the appellants thereby rendering an award solely on the respondent’s claim, and 4. Erred in law and fact and misdirected himself in awarding costs and interests. The appellants pray that the judgment delivered on 15/06/2023 be quashed and set aside, the court to determine the issue of liability as to mental torture and anguish. That they be awarded costs. Respondent’s Case 7. She adopted her witness statement dated 23/8/2021 and list of documents. She further produced a demand letter and medical report. In cross-examination she told the court that wo of the appellants were convicted on behalf of others. PW2 Benrodgers Kitheka Tundu testified that PW1 is his first wife. He adopted his witness statement. In cross-examination he told the court that Emily Kavemba was convicted for Assaulting his wife while others were acquitted. Appellants Case 8. DW1 EKK (2nd appellant) she adopted her witness statement. That she was charged in the criminal case but she was acquitted with the others. That she was placed on C.S.O as she was seventeen (17) years old. That it was one to assault. That she did not assault anyone. She was the only witness for the appellants. The appeal was canvassed by way of written submissions. 9. No submission were filed by any party. Analysis and determination 10. I have considered the proceedings and Judgment before the learned magistrate. I have also considered the grounds of appeal and the submissions by the parties. The issues for determination are: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19614/eng@2025-12-15 2

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1. Whether the appellants should pay the award of Kshs. 200,000/= despite acquittal on the offence of assault against the respondent. 11. This is a first appeal where the court is mandated to re-evaluate the evidence before the trial court as well as the Judgment and arrive at its own independent Judgment and whether or not to allow the appeal. This court as the first appellate court is empowered to subject all the evidence to a fresh and exhaustive scrutiny and make its conclusions about it but to bear in mind that it did not have an opportunity of seeing and hearing the witnesses first hand. This was stated in Selle & another -vs- Associated Motor Boat Co. Ltd & Others (1968) E.A 123 and in Peters -vs- Sunday Post Limited (1958) EA. 12. An appeal to this court from the sub-ordinate court is on both law and facts. This is provided under Section 78 of the Civil Procedure Act Cap 21 Laws of Kenya which provides: “ (1) (2) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein”. 13. The respondent in her witness statement and in the proceedings in the criminal case had stated that all the appellants had assaulted her. That is 1st, 2nd & 3rd appellants hit her with a panga, 4th with a stick, 5th entered the shop, 6th hit her and 7th entered her shop. Gideon Kasina hit her on the thighs. Betty and Kavemba beat her with a panga. The learned magistrate held that the plaintiff established that the seven defendants jointly and severally assaulted her occasioning her actual bodily harm. That the Judgment in the criminal case showed that in the process of assaulting her they took her thro’ a scary and terrible experience. That they even detained her. That the events were aggravated in nature. That she must have gone thro’ mental anguish and torture. 14. The learned magistrate based his finding on the facts that the standard of proof in civil matters is lower than that required in a criminal case. The standard of proof in criminal cases is that of beyond any reasonable doubts while that in civil matters is on a balance of probabilities. The popular usage of the word assault is to mean that it is actionable per-se, that is without any proof of damage. The judgment of the learned magistrate in the criminal case held that the respondent proved that she was assaulted. The respondent proved that the appellants participated in the assault. The evidence adduced by the respondent proved on a balance of probabilities that she was assaulted. Assault is an intentional tort that falls under the category of trespass to person. It follows that a party who proves assault is entitled to damages. 15. The burden of proof in civil cases is on balance of probabilities lower than in criminal cases. The learned magistrate awarded damages for mental anguish. The appellant urged the court to consider the damages awarded for mental anguish by the learned trial magistrate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19614/eng@2025-12-15 3

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16. General damages for mental anguish are also known as emotional distress or pain and suffering are awarded in claims for personal injury as damages for psychological suffering. They fall in the head of general damages. The damages are awarded at the discretion of the court upon proof by the plaintiff that he suffered injuries and mental anguish as a result of the negligence by the defendant. The damages are proved by the testimony of the plaintiff and supported by medical evidence as the expert opinion linking the defendants actions to the plaintiff’s psychological trauma. The party must prof on a balance of probabilities that he suffered injuries which by their nature took some duration of time to heal, the manner in which they were caused and the impact it had on her life, such as ability to work and earn a decent living. 17. The plaintiff must prove negligence and liability against the defendant. The claim for mental or emotional anguish was discussed in the case of Patrick Gachoka -vs- Kiambu County Government (HCCA E004/2022) (2023) KEHC 2980 KLR (31/3/2023) Judgment it was stated: “ It is said that emotional distress that results from actions of another person’s conduct (as opposed to mental anguish that may emanate from a disease or injury) is to be expected in normal human interactions which ordinary reasonable men should be able to bear. The law only comes to protect the person if the emotional distress direct to him is beyond what a reasonable man is expected to bear. I came across useful reading in HAT case No. 001/2015 MKK -vs- CNN (2016) eKLR where the history of claim general damages or emotional distress and mental anguish has ben discussed comprehensively. To paraphrase the award of the said damages is traceable to leading English decision of Wilkinson -vs- Dawton and for the plaintiff to succeed in getting an award of damages for emotional distress or mental anguish he had to prove that: 18. 19. a. The defendant conduct was extreme and outrageous. b. That the defendant intended to cause severe emotional distress to the plaintiff. c. That the defendant extreme and outrageous conduct caused emotional distress to the plaintiff and d. That the plaintiff emotional distress was severe.” The Judge went on to state where a claim was based on negligent infliction of emotional distress, it had to be proved that: a. “That the defendant owed a duty of care to the plaintiff b. The defendant breached the duty c. The defendant breach caused emotional distress to the plaintiff d. The plaintiff suffered emotional distress e. That the injuries were proximately caused by the defendant.” Emotional Distress is defined in Blacks Law Dictionary as follows: “ A highly unpleasant mental reaction (such as anguish, grief, bright, humiliation or fury) that results from another person’s conduct emotional pain and suffering. Emotional Distress, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19614/eng@2025-12-15 4

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when severe enough can from a basis for recovery of tort damages. Also termed emotional harm, mental anguish, mental distress, mental suffering.” 20. It further states that: “ Emotional distress passes under various names such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions such as flight, horror, grief, shame humiliation, embarrassment, anger, chagrin, disappointment wrong and nausea. It is only when it is extreme that liability arises… The law intervenes only where the distress inflicted is severe that no reasonable man could be expected to endure it. The intensity and duration of distress are factors to be considered in determining severity. Severe distress must be proved, but in many cases, the extreme and outrageous character of the defendant conduct is itself important evidence that the distress has existed.” 21. From the above analysis, it clear that damages for mental anguish are awarded where the plaintiff has proved that she suffered such mental and emotional anguish. The learned magistrate held that he 2nd accused Emily Kavemba Kiniu, the 2nd appellant in this appeal was convicted for assault. The rest were acquitted. The standard of proof in criminal cases is very high compared to that in civil cases. Their acquittal was on benefit of doubt after they gave an explanation. This does not mean that they cannot be held liable in a civil claim. Looking at the Judgment, it is clear that all the seven defendants were placed at the scene of crime by the prosecution witnesses … the case against the 2nd defendant on assault was proved. Under the circumstances …… on a balance of probabilities, the plaintiff has established that the seven defendants jointly and severally assaulted her occasioning her actual bodily harm. That Judgment also shows that in the process of assaulting her, they took her through terrible and scary experience. They even detained her. The events were aggravated in nature. She must have gone through mental torture and anguish. 22. Kshs. 200,000/= was awarded against the 7 (seven) defendants jointly and severally. The appellant was claiming damages for assault. An acquittal in a criminal case is not a bar to filing a claim for compensation with an award of general damages this is because prove is on a balance of probabilities. 23. The standard of proof is lower than that in criminal cases. The respondent was attacked by the seven appellants and she sustained serious injuries, particularized as bruises on the back bruises on the right palm and bruises on the left thigh. She relied on a medical report and a P3 form showing that she suffered bodily harm. The appellants were put on their defence in the criminal case. This means that there was enough proof that they all participated in the assault. The proceedings in the criminal case show that they all participated in the events of leading to the assault. 24. The standard of proof demanded in a specific case in order for a party to succeed is what constitutes the burden of proof. See Blacks Law Dictionary (9th Edition 2009) at page 1535 which defines the standard of proof. The decision of the learned magistrate was based on proof on a balance of probabilities. In view of the evidence tendered, there is nothing to fault the decision of the learned magistrate. The attack by the seven appellants on the defendant caused her bodily harm as well as well as mental anguish she proved her case and was therefore entitled to general damages. The learned magistrate awarded damages for assault, mental torture and anguish. 25. The learned magistrate had a duty to award damages. In Edward Sargent -vs- Chohotabhai Jhaverbhat Patel (1949) 16 E.A CA 63 it was held that an appeal does not lie to an appellate court against an order https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19614/eng@2025-12-15 5

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made in the exercise of judicial discretion, but the appeal court will interfere only if it be shown that the discretion has not been exercised judicially.” 26. The award of general damages by the learned magistrate is an exercise of judicial discretion. The circumstances in which appellate courts can interfere with discretionary orders is well settled in various decisions of this court and court of Appeal. In Mbogo -vs- Shah (1968) E.A 93 it was held that: “ An appellate court will interfere if the exercise of discretion is clearly wrong because the Judge has misdirected himself and acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 27. The learned magistrate awarded damages which were not excessive in the circumstances. The exercise of discretion was done judiciously. I have no reason to interfere with the exercise of discretion. The acquittal of 1st, 3rd, 4th & 5th appellant was not a bar to them being sued in a claim for general damages. The appellants were placed at the scene of the assault and therefore they were culpable jointly and severally as they had a common intention to assault the appellant. Costs follow the event and are awarded at the discretion of the court, see Section 27 of the Civil Procedure Act, which provides: “ “ (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. 2. The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.” For these reasons, I find that this appeal lacks merits and is dismissed with costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19614/eng@2025-12-15 6

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