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Gladys Kavata Namaswa [Suing As Personal Representative Of George David Namaswa] V Kalenjin Auto Hardware [2016] eKLR

Case Number: Civil Case 34 of 2003 Date Delivered: 19 May 2016

Judge: Abida Ali-Aroni

Court: High Court at Bungoma

Parties: Gladys Kavata Namaswa [Suing as personal representative of George David Namaswa] v Kalenjin Auto Hardware

Citation: Gladys Kavata Namaswa [Suing As Personal Representative Of George David Namaswa] V Kalenjin Auto Hardware [2016] eKLR

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Boniface Githinji Ndereva V Republic [2016] eKLR

Case Number: Criminal Appeal 224 of 2011 Date Delivered: 19 May 2016

Judge: John Muting'a Mativo

Court: High Court at Nyeri

Parties: Boniface Githinji Ndereva v Republic

Citation: Boniface Githinji Ndereva V Republic [2016] eKLR

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Chairman B O G Goseta Secondary School V Margaret Busisa T/a Jomadi House Of Design [2016] eKLR

Case Number: Civil Appeal 2 of 2013 Date Delivered: 19 May 2016

Judge: Beatrice Thuranira Jaden

Court: High Court at Kitale

Parties: Chairman B O G Goseta Secondary School v Margaret Busisa t/a Jomadi House of Design

Citation: Chairman B O G Goseta Secondary School V Margaret Busisa T/a Jomadi House Of Design [2016] eKLR

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Republic V Jacob Juma Kironget & 2 Others [2016] eKLR

Case Number: Criminal Case 5 of 2007 Date Delivered: 19 May 2016

Judge: Abida Ali-Aroni

Court: High Court at Bungoma

Parties: Republic v Jacob Juma Kironget,Fridah Chepkerio & Nancy Chepkemoi

Citation: Republic V Jacob Juma Kironget & 2 Others [2016] eKLR

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Republic V Cabinet Secretary Ministry Of Health & 4 Others Ex-parte Micah Matiangi Onyiego

Case Number: Miscellaneous Application 391 of 2015 Date Delivered: 19 May 2016

Judge: George Vincent Odunga

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Republic v Cabinet Secretary Ministry of Health ,Registrar, Nursing Council of Kenya, Director of Medical Services- (Dr.Nicholas Muraguri), Nursing Council of Kenya & Attorney General Ex-parte Micah Matiangi Onyiego

Citation: Republic V Cabinet Secretary Ministry Of Health & 4 Others Ex-parte Micah Matiangi Onyiego

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Sheila Nkatha Muthee V Alphonce Mwangemi Munga & Others & Another [2016] eKLR

Case Number: Civil Appeal 314 of 2014 Date Delivered: 19 May 2016

Judge: George Benedict Maina Kariuki, Jamila Mohammed, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: Sheila Nkatha Muthee v Alphonce Mwangemi Munga & others & Frank Helge Neugebauer

Citation: Sheila Nkatha Muthee V Alphonce Mwangemi Munga & Others & Another [2016] eKLR

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Simon Ndichu Kahoro V Republic [2016] eKLR

Case Number: Criminal Appeal 69 of 2015 Date Delivered: 19 May 2016

Judge: Alnashir Ramazanali Magan Visram, Paul Kihara Kariuki, Festus Azangalala

Court: Court of Appeal at Nairobi

Parties: Simon Ndichu Kahoro v Republic

Citation: Simon Ndichu Kahoro V Republic [2016] eKLR

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Kenya Knitting & Weaving Mills Limited V Kenya Power & Lighting Company Limited [2016] eKLR

Case Number: Civil Appeal 171 of 2008 Date Delivered: 19 May 2016

Judge: George Benedict Maina Kariuki, Jamila Mohammed, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: Kenya Knitting & Weaving Mills Limited v Kenya Power & Lighting Company Limited

Citation: Kenya Knitting & Weaving Mills Limited V Kenya Power & Lighting Company Limited [2016] eKLR

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Republic V Allan Chesome Hussein [2016] eKLR

Case Number: Criminal Case 16 of 2013 Date Delivered: 19 May 2016

Judge: Abida Ali-Aroni

Court: High Court at Bungoma

Parties: Republic v Allan Chesome Hussein

Citation: Republic V Allan Chesome Hussein [2016] eKLR

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Tryphosa Jebet Kosgey V Elgon View Hospital [2016] eKLR

Case Number: Petition 8 of 2015 Date Delivered: 19 May 2016

Judge: George Kanyi Kimondo

Court: High Court at Eldoret

Parties: Tryphosa Jebet Kosgey v Elgon View Hospital

Citation: Tryphosa Jebet Kosgey V Elgon View Hospital [2016] eKLR

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Christopher Kagema Gichuhi V Livingstone Gitome Kohiguka [2016] eKLR

Case Number: Civil Appeal 290 of 2009 Date Delivered: 19 May 2016

Judge: Alnashir Ramazanali Magan Visram, Hannah Magondi Okwengu, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Christopher Kagema Gichuhi v Livingstone Gitome Kohiguka

Citation: Christopher Kagema Gichuhi V Livingstone Gitome Kohiguka [2016] eKLR

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Evans Wamalwa Simiyu V Republic [2016] eKLR

Case Number: Criminal Appeal 118 of 2013 Date Delivered: 19 May 2016

Judge: Erastus Mwaniki Githinji, Martha Karambu Koome, Hannah Magondi Okwengu

Court: Court of Appeal at Nairobi

Parties: Evans Wamalwa Simiyu v Republic

Citation: Evans Wamalwa Simiyu V Republic [2016] eKLR

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Rustam Hira V Charles Mbagaya Amira & Another [2016] eKLR

Case Number: Civil Appeal 43 of 2007 Date Delivered: 19 May 2016

Judge: George Benedict Maina Kariuki, Sankale Ole Kantai, Fatuma sichale

Court: Court of Appeal at Nairobi

Parties: Rustam Hira v Charles Mbagaya Amira & Commerce Bank Limited

Citation: Rustam Hira V Charles Mbagaya Amira & Another [2016] eKLR

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James Weko Amuli V James Finlays Kenya Limited [2016] eKLR

Case Number: Cause 8 of 2015 Date Delivered: 19 May 2016

Judge: Marete D.K. Njagi

Court: Employment and Labour Relations Court at Kericho

Parties: James Weko Amuli v James Finlays Kenya Limited

Citation: James Weko Amuli V James Finlays Kenya Limited [2016] eKLR

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Rosemary Wanjiru Kangangi V Mwangi Kariuki Kangangi & Another [2016] eKLR

Case Number: Succession Cause 431 of 2012 Date Delivered: 19 May 2016

Judge: Robert Kipkoech Limo

Court: High Court at Kerugoya

Parties: Rosemary Wanjiru Kangangi v Mwangi Kariuki Kangangi & Mary Watheiya Kangangi

Citation: Rosemary Wanjiru Kangangi V Mwangi Kariuki Kangangi & Another [2016] eKLR

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Bonace Onyango Oguk V Republic [2016] eKLR

Case Number: Criminal Appeal Case 29 of 2015 Date Delivered: 19 May 2016

Judge: James Aaron Makau

Court: High Court at Siaya

Parties: Bonace Onyango Oguk v Republic

Citation: Bonace Onyango Oguk V Republic [2016] eKLR

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Jenniffer Kathuku Mathiu V Francis Mubichi Mukiira [2016] eKLR

Case Number: Civil Case 74 of 2014 Date Delivered: 19 May 2016

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Jenniffer Kathuku Mathiu v Francis Mubichi Mukiira

Citation: Jenniffer Kathuku Mathiu V Francis Mubichi Mukiira [2016] eKLR

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Christopher Muriithi Ngugu V Eliud Ngugu Evans [2016] eKLR

Case Number: Civil Appeal 200 of 2008 Date Delivered: 19 May 2016

Judge: Erastus Mwaniki Githinji, Jamila Mohammed, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: Christopher Muriithi Ngugu v Eliud Ngugu Evans

Citation: Christopher Muriithi Ngugu V Eliud Ngugu Evans [2016] eKLR

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P.B V A.W.N.B [2016] eKLR

Case Number: Matrimonial Cause 23 of 2014 Date Delivered: 19 May 2016

Judge: Said Juma Chitembwe

Court: High Court at Malindi

Parties: P.B v A.W.N.B

Citation: P.B V A.W.N.B [2016] eKLR

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John Muriithi Kathenge V Kimunye Tea Factory Co. Ltd [2016] eKLR

Case Number: Civil Appeal Case 12 of 2012 Date Delivered: 19 May 2016

Judge: Robert Kipkoech Limo

Court: High Court at Kerugoya

Parties: John Muriithi Kathenge v Kimunye Tea Factory Co. Ltd

Citation: John Muriithi Kathenge V Kimunye Tea Factory Co. Ltd [2016] eKLR

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James Ole Kiyapi Permanent Secretary, Ministry Of Medical Services & Attorney General V DOL International Ltd & Kenya Anti-Corruption Commission [2016] eKLR

Case Number: Civil Appeal 305 & 249 of 2013 Date Delivered: 19 May 2016

Judge: Alnashir Ramazanali Magan Visram, George Benedict Maina Kariuki, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: James Ole Kiyapi Permanent Secretary, Ministry of Medical Services & Attorney General v DOL International Ltd & Kenya Anti-Corruption Commission

Citation: James Ole Kiyapi Permanent Secretary, Ministry Of Medical Services & Attorney General V DOL International Ltd & Kenya Anti-Corruption Commission [2016] eKLR

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David Kamau Gicharu V Republic [2016] eKLR

Case Number: Criminal Appeal 68 of 2015 Date Delivered: 19 May 2016

Judge: Alnashir Ramazanali Magan Visram, Paul Kihara Kariuki, Festus Azangalala

Court: Court of Appeal at Nairobi

Parties: David Kamau Gicharu v Republic

Citation: David Kamau Gicharu V Republic [2016] eKLR

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Alexander Thuranira Kaminchia V John Murungi & Another [2016] eKLR

Case Number: Civil Suit 5 of 2008 Date Delivered: 19 May 2016

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: Alexander Thuranira Kaminchia v John Murungi & Joshua Mwitari

Citation: Alexander Thuranira Kaminchia V John Murungi & Another [2016] eKLR

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Julius Ole Koikai V Republic [2016] eKLR

Case Number: Criminal Appeal 214 of 2007 Date Delivered: 19 May 2016

Judge: Erastus Mwaniki Githinji, Martha Karambu Koome, Hannah Magondi Okwengu

Court: Court of Appeal at Nairobi

Parties: Julius Ole Koikai v Republic

Citation: Julius Ole Koikai V Republic [2016] eKLR

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Mwihangiri Farmers Limited V Ecumenical Development Co-operative Society (E.D.C.S.) [2016] eKLR

Case Number: Civil Appeal 24 of 2012 Date Delivered: 19 May 2016

Judge: Wanjiru Karanja, Hannah Magondi Okwengu, George Benedict Maina Kariuki

Court: Court of Appeal at Nairobi

Parties: Mwihangiri Farmers Limited v Ecumenical Development Co-operative Society (E.D.C.S.)

Citation: Mwihangiri Farmers Limited V Ecumenical Development Co-operative Society (E.D.C.S.) [2016] eKLR

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Japheth Chege Mwangi V Republic [2016] eKLR

Case Number: Criminal Appeal 73 of 2015 Date Delivered: 19 May 2016

Judge: Mohammed Abdullahi Warsame, George Benedict Maina Kariuki, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: Japheth Chege Mwangi v Republic

Citation: Japheth Chege Mwangi V Republic [2016] eKLR

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P.N. Mashru Transporters Limited V Rayshian Apparels Limited [2016] eKLR

Case Number: Civil Appeal 256 of 2009 Date Delivered: 19 May 2016

Judge: Martha Karambu Koome, George Benedict Maina Kariuki, Sankale Ole Kantai

Court: Court of Appeal at Nairobi

Parties: P.N. Mashru Transporters Limited v Rayshian Apparels Limited

Citation: P.N. Mashru Transporters Limited V Rayshian Apparels Limited [2016] eKLR

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Gitobu Imanyara & 2 Others V Attorney General [2016] eKLR

Case Number: Civil Appeal 98 of 2014 Date Delivered: 19 May 2016

Judge: Alnashir Ramazanali Magan Visram, Jamila Mohammed, Fatuma sichale

Court: Court of Appeal at Nairobi

Parties: Gitobu Imanyara, Njehu Gatabaki & Bedan Mbugua v Attorney General

Citation: Gitobu Imanyara & 2 Others V Attorney General [2016] eKLR

Principles applicable to award and assessment of damages for the violation of Constitutional rights of an individual by a State

 

Gitobu Imanyara & 2 others v Attorney General

Civil Appeal No. 98 Of 2014

Court Of Appeal

At Nairobi

Alnashir Visram F. Sichale J. Mohammed JJA

May 19, 2016

Reported by Njeri Githang’a

Constitutional Law-fundamental rights and freedoms-violation of-award of damages for violation of rights- principles applicable to award and assessment of damages - what appropriate remedies were available for damages arising out of the violation of Constitutional and fundamental rights of an individual, by a State

Constitutional law- constitutional tort actions- public law remedies- whether damages arising out of Constitutional violations also known as constitutional tort actions were within public law remedies and different from the common law damages for tort under private law

Company Law-locus standi- legal entity of a company- where a company was a separate legal entity from its owners and had a right to sue and be sued as a separate and distinct personality-whether shareholders of a company could bring an action for losses and damages suffered by the company- whether a constitutional court could award damages for losses suffered by Petitioners’ companies or associated business interests

Brief facts

The claim before the High Court was for damages for Constitutional violations by the state. Liability was expressly admitted by the Respondent, (save for any lawful conviction which was to be adjudicated by the Court) the Judge proceeded to deal with the damages for the admitted violations of the appellants fundamental rights and freedoms under article 23(3) of the Constitution of Kenya, 2010 and in his final judgment issued a declaration in respect of each of the appellant that: (1) the Petitioner's fundamental rights and freedoms under articles 28, 29, 31, 33(1), 34(1), 34(2), 37, 39 and 40(1) of the Constitution 2010 and under sections 72(1), 72(2), 72(3), 72(5),74(1), 75(1), 76(1), 77(1), 77(2), 79(1), 80(1) and 81(1) of the Constitution of Kenya (Repealed) at material times had been and were repeatedly contravened and grossly violated by the Police, Criminal Investigation Department Officers, National Security Intelligence Service (formerly Special Branch), and other Kenyan Government servants, agents, employees and institutions, on numerous dates at various police stations in Nairobi City and surrounding towns; secondly, he further gave orders awarding Kshs. 15 Million, Kshs. 10 Million and Kshs. 7 Million to the 1st appellant, 2nd appellant and 3rd appellant respectively for general damages suffered as a result of the constitutional right violations by the State agents.

It was that judgment that provoked the joint appeal. They claimed that that was inadequate compensation of damages for the injuries and losses suffered by the appellants and the failure by the Judge to set aside the criminal conviction of the 1st  appellant especially when liability was admitted by the Respondent was wrong. It was argued that there was nothing more serious than a criminal conviction of an advocate and that because the respondent opted to admit liability and did not challenge the issue before the trial court, it was proper for the Court to set aside the criminal conviction of the 1st appellant so that the 1st appellant's honor and dignity could be restored. Counsel submitted that the criminal conviction was procured through unconstitutional means and hence should be set aside.

On the second broad ground of appeal relating to award of damages, it was submitted that an award of KShs. 15,000,000/=,Kshs. 10,000,000/= and Kshs. 7,000,000/= to the appellants respectively as general damages was manifestly low for the kind of violations the appellants had suffered, so as to warrant the interference of the Court.

The respondent in opposing the appeal submitted that the trial judge had arrived at the correct conclusion, both in terms of the law and the quantum of damages. It was submitted that the judge rightfully considered the evidence placed before him, the limited public resources and the burden to the innocent tax payers if such atrocious sums were awarded to the appellants as prayed in their petitions.

Counsel submitted that the reliefs sought by the appellants for constitutional violations were against the State which were within the public law remedies and therefore should be distinguished from the private or personal remedies in tort. He argued that in such cases, it was the state which bore the responsibility for such violations and not the individual who committed the atrocities. In furtherance of that position, counsel argued that damages awarded under public law for the violations of constitutional rights of individuals by state should not be punitive but should suffice to only vindicate the Petitioners.

Issues

  1. What appropriate remedies were available for damages arising out of the violation of Constitutional and fundamental rights of an individual, by a State.
  2. What were the principles applicable to award and assessment of damages for the violation of the Constitutional rights of an individual by a State?
  3. whether damages arising out of Constitutional violations also known as Constitutional Tort Actions were within public law remedies and different from the common law damages for tort under private law.
  4. Whether a constitutional court could award damages for losses suffered by Petitioners’ companies or associated business interests.
  5. Whether shareholders of a company could bring an action for losses and damages suffered by the company.

Held

  1. The Court was not necessarily bound to accept the findings of fact by the Court below and an appeal to the Court of Appeal from a trial by the High Court was by way of retrial and the principles upon which the Court acted in such an appeal were well settled. The Court had to reconsider the evidence, evaluate it itself and draw its own conclusions bearing in mind that it had neither seen nor heard the witnesses and should make due allowances in that respect.
  2. The Court would be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because an appellate Judge thought that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it would generally be necessary that the Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of the Court, an entirely erroneous estimate of the damage to which the plaintiff was entitled.
  3. In arriving at the quantum for award of general damages, the trial court considered various similar cases where different amounts for damages have been awarded by the domestic courts for violations of constitutional rights. On the question of the award of exemplary damages, the trial court appreciated that exemplary damages were not properly awardable noting the burden to the innocent tax-payer.
  4. Under common law principles, an injured party was entitled to damages for the loss and injury suffered under private law causes of action, such as tort, where compensation of personal loss was at issue. However, in the instant case, there was need to consider what appropriate remedies were available for damages arising out of the violation of Constitutional and fundamental rights of an individual by a State under public law.
  5. The relevant principles applicable to award of damages for constitutional violations under the Constitution were that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense. An additional award, not necessarily of substantial size, could be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach, and deter further breaches. Accordingly, the expressions punitive damages or exemplary damages were better avoided as descriptions of that type of additional award. In some cases, a suitable declaration could suffice to vindicate the right which had been breached.
  6. A consideration on when a remedy in a Constitutional violation case was just and appropriate included, a remedy that would;
  1. meaningfully vindicate the rights and freedoms of the claimants;
  2. employ means that were legitimate within the framework of constitutional democracy;
  3. be a judicial remedy which vindicated the right while invoking the  function and powers of a court; and
  4. be fair to the party against whom the order was made.
  1. The award of damages for constitutional violations of an individual's right by state or the government were reliefs under public law remedies within the discretion of a trial court, however, the court's discretion for award of damages in Constitutional violation cases though was limited by what was appropriate and just according to the facts and circumstances of a particular case.
  2. The primary purpose of a constitutional remedy was not compensatory or punitive but was to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination was an exercise in rationality and proportionality. In some cases, a declaration only would be appropriate to meet the justice of the case, being itself a powerful statement which could go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages could be called for in addition to the declaration. Public policy considerations was also important because it was not only the Petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.
  3. A company was a separate legal entity from its owners and had a right to sue and be sued as a separate and distinct personality. The law did not allow the shareholder of a company to bring an action for losses and damages suffered by the company. The proper plaintiff in an action arising out of losses and damages suffered by the company was the company itself. The Nairobi Law Monthly Magazine associated with the 1st appellant, the Finance Magazine associated with the 2nd appellant and both the Beyond Magazine and People Magazine associated with the 3rd appellant were separate legal entities capable of bringing a law suit for the losses alleged to have been suffered. For the same reasons, the 1st appellant had no legal capacity to claim for losses or damages allegedly suffered by the National Bank of Kenya, Deposit Protection Fund and National Council of Churches who were his creditors.
  4. In the proceedings, the 2nd appellant claimed for losses amounting to Ksh. 95,000,000/= due to the seizures of almost 950,000 copies of the Finance Magazine. However the only evidence produced in support of quantum of damages was a copy of the Daily Nation newspaper coverage. The primary documents that the appellants relied on were newspaper articles. The media articles, taken alone, were of no probative value and did not demonstrate any effort on the part of the 2nd appellant to demonstrate losses he suffered. The appellants had failed to discharge their burden of proof on claims for damages. In any event, even if the Magazines were confiscated thereby occasioning any losses; the 2nd appellant had no locus standi to bring a cause of action for the said losses.
  5. The fact that the respondent admitted liability ab initio did not in any way shift the burden of proof from the appellants. Even where a defendant had not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings were conducted. The claimant lay on the table evidence of facts contended against the defendant and the trial court had a duty to examine that evidence to satisfy itself that indeed the claim had been proved. If the evidence fell short of the required standard of proof, the claim had to be dismissed. The standard of proof in a civil case, on a balance of probabilities, did not change even in the absence of a rebuttal by the other side.
  6. The appellant could not say that he was not obliged to place evidence of damage suffered before the constitutional court before liability was determined. It must first be shown that there had been damage suffered as a result of the breach of the constitutional right before the court could exercise its discretion to award damages in the nature of compensatory damages to be assessed. If there was damage shown, the second stage of the award was not available as a matter of course. It was only if some damage had been shown that the Court could exercise its discretion whether or not to award compensatory damages. The practice had developed in constitutional matters in the jurisdiction of having a separate hearing for the assessment of the damages, but it could not be overemphasized that that was after there was evidence of the damage.
  7. Financial losses incurred by the appellants associated businesses and properties, were special damages which should not only be specifically pleaded but also strictly proved for they were not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and probability of proof required depended on the circumstances and the nature of the acts themselves.
  8. The appellants did not specifically plead and prove the damages from the losses they allegedly suffered. That could have been done by proof of receipts, bank statements or any invoices to show the liquidated losses incurred as a result of their Constitutional violations however, the particulars were lacking in the case.
  9. The assessment of damages was a discretionary relief, the trial court could not be faulted for failure to award exemplary and aggravated damages on the grounds of heavy burden to the innocent tax payer and secondly due to the improved political environment and the positive steps taken by the government in dealing with human right violations. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.
  10. There was no justification to interfere with the trial Judge’s exercise of discretion in assessing the damages awarded to the appellants based on the evidence placed before him. Even though the trial Judge did not distinguish between public law remedies and private law remedies, he however proceeded correctly and applied the general principles for award of monetary damages in arriving at his decision.
  11. The inhuman treatment, physical and mental torture, and losses suffered by the appellants in the hands of State agents could not be denied. However a court of law had to apply the law based on the evidence presented before the Court. Therefore the trial judge’s discretion in the award of damages to the appellants could not be interfered with.
  12. The respondent did not address the Court on the issue whether the Judge misapplied the law by failure to set aside the criminal conviction of the 1st appellant issue either in his written submissions or during the hearing of the appeal and neither did the appellants raise the issue in their submission. The judge had declined to set aside the conviction of the 1st appellant as the same was an order of the court in a criminal conviction.
  13. The then Attorney General was accused of personally supervising the 1st appellant’s prosecution and trial in that he “… intimidated and/or compromised the trial magistrate into convicting and sentencing him to five years imprisonment without an option of time.” The particulars and extent of the interference in the trial court and in the appeal court was not explained and the record was completely silent on that. As pointed above, the ground of appeal was directed at the Attorney-General and not at the trial court nor the 1st appellate court.

Appeals dismissed with each party to bear their own costs

 

Cases

East Africa;

  1. Bangue Indosuez v DJ Lowe and company Ltd [2006] 2 KLR 208 – (Explained)
  2. Bank of Baroda (Kenya) Limited v Timwood Products Ltd Civil Appeal 132 of 2001 – (Mentioned)
  3. Butt v Khan [1981] KLR 349 – (Approved)
  4. Gicheru v Morton & another (2005) 2 KLR 333 – (Explained)
  5. Kariuki, Benedict Munene & 14 others v Attorney General Petition No 722 of 2009 – (Explained)
  6. Kariuki, Peter M v Attorney General Civil Appeal No 79 of 2012 – (Mentioned)
  7. Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v Am Lubia & Olive Lubia (1982 – 88) 1 KAR 727 – (Explained)
  8. Lalji, Sultan Hasham & 2 others v Ahmed Hasham Lalji & 4 others Civil Appeal No 3 of 2003 – (Explained)
  9. Lukenya Ranching and Farming Co-Operatives Society Ltd v Kavoloto [1970] EA 414 – (Explained)
  10. Moi, Daniel Toroitich v Mwangi Muriithi Civil Appeal No 240 of 2011 – (Explained)
  11. Mumbi M'Nabea v David Wachira Civil Appeal No 299 of 2012 – (Mentioned)
  12. PA Okelo & MM Nsereko t/a Kaburu Okelo & Partners v Stella Karimi Kobia & 2 others Civil Appeal No 183 of 2003 – (Mentioned)
  13. Peters v Sunday Post Ltd [1958] EA 424 – (Explained)
  14. Rumba Kinuthia & 6 others v Attorney General Miscellaneous Application No 1408 of 2004 – (Mentioned)
  15. Ruwa, Randu Nzau & 2 others v Internal Security Minister & another Miscellaneous Application No 468 of 2010 – (Explained)
  16. Sande v Kenya Co-operative Creameries Ltd [1992] LLR 314 – (Mentioned)
  17. Selle & another v Associated Motor Boat Company Limited and others [1968] EA 123 – (Mentioned)
  18. Wakaba, Harun Thungu & 20 others v Attorney General Miscellaneous Application No1411 of 2004 – (Mentioned)
  19. Wamwere v Attorney General Petition No 737 of 2009 – (Explained)
  20. Williamson Diamonds Ltd v Brown [1970] EA 1 – (Mentioned)

South Africa

  1. Dendy v University of Witwatersrand, Johannesburg & others  [2006] 1 LRC 291 – (Explained)

Canada

  1. Doucet-Boudreau v Nova Scotia (Minister of Education) 2003 SCC 62 – (Explained)
  2. Vancouver (City) v Ward, 2010 SCC 27 [2010] 2 SCR 28 – (Mentioned)

Trinidad and Tobago

  1. Alphie Subiah v Attorney General of Trinidad and Tobago Appeal No 39 of 2007 – (Explained)
  2. Peters v Marksman & another [2001] 1 LRC – (Explained)
  3. Siewchand Ramanoop v Attorney General of T&T, PC Appeal No 13 of 2004 – (Explained)
  4. Tamara Merson v Drexel Cartwright and Attorney General (Bahamas) Appeal No 61 of 2003 – (Explained)

United Kingdom

  1. Rook v Rairrie [1941] 1 All ER 297 – (Mentioned)
  2. Salmon v Salmon & Co Ltd [1895-99] All ER 33; [1897] AC 22 – (Mentioned)

Statutes

East Africa

  1. Constitution of Kenya, 2010 articles 23(3); 28; 29; 31; 33(1); 34(1); 34(2); 37; 39; 40(1); 159 – (Interpreted)
  2. Preservation of Public Security Act (cap 57) In general 
  3. Evidence Act (cap 80) section 3 – (Interpreted)
  4. Constitution of Kenya, 1969 (Repealed) section 72(1-3),(5); 74(1), 75(1), 76(1); 77(1),(2); 79(1); 80(1); 81(1); 84(2) – (Interpreted)
  5. Prison Act (cap 90) In general 

Advocates

  1. Mr PK Muite SC for the Appellants
  2. Mr Kepha Onyiso for the Respondent

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Permanent Secretary Ministry Of Roads & Another V Fleur Investments Limited [2016] eKLR

Case Number: Civil Appeal 114 of 2014 Date Delivered: 19 May 2016

Judge: Festus Azangalala, George Benedict Maina Kariuki, Jamila Mohammed

Court: Court of Appeal at Nairobi

Parties: Permanent Secretary Ministry of Roads & Attorney General v Fleur Investments Limited

Citation: Permanent Secretary Ministry Of Roads & Another V Fleur Investments Limited [2016] eKLR

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Muia Mutinda V Republic [2016] eKLR

Case Number: Criminal Appeal 6 of 2015 Date Delivered: 19 May 2016

Judge: Lilian Nabwire Mutende

Court: High Court at Kitui

Parties: Muia Mutinda v Republic

Citation: Muia Mutinda V Republic [2016] eKLR

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Evans Wamalwa Simiyu V Republic [2016] eKLR

Case Number: Criminal Appeal 118 of 2013 Date Delivered: 19 May 2016

Judge: Erastus Mwaniki Githinji, Martha Karambu Koome, Hannah Magondi Okwengu

Court: Court of Appeal at Nairobi

Parties: Evans Wamalwa Simiyu v Republic

Citation: Evans Wamalwa Simiyu V Republic [2016] eKLR

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Vincent Mugambi Ikaiga V Esther Njoki Kimathi [2016] eKLR

Case Number: Land Case 27of 2016 Date Delivered: 19 May 2016

Judge: Peter Muchoki Njoroge

Court: Environment and Land Court at Meru

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Whether it was illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences

Rebecca Mwikali Nabutola & 2 Others V Republic

Criminal Appeal No. 232 of 2012

In The High Court of Kenya

At Nairobi

G. W. Ngenye – Macharia J

May 19, 2016.

 

Reported By Njeri Githang’a & Winnie Matiri

 

Criminal law-charges and information-joinder of counts- Joinder of two or more accused in one charge -whether the charge sheet was defective for mis-joinder and duplicity- whether it was illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences Criminal Procedure Code, section 135 & section 136

 

Criminal Law-offences- offence of conspiracy - what was required in order to proof an offence of conspiracy to defraud-whether an offence of conspiracy could stand against one person - circumstances where it was it was undesirable to join a count of conspiracy with counts for substantive offences

 

 

Brief Facts

The Appellants filed an appeal from the conviction and sentence in the Chief Magistrate Court. The 1st Appellant contended that the court did not comply with sections 199, 211 and 200(3) of the Criminal Procedure Code and did not record the demeanor of the prosecution witnesses. He cited the charges as bad for duplicity, and that the Court failed to address the issue of joinder of the accused persons in her judgment. He further contended that the evidence adduced did not prove the case beyond a reasonable doubt.

The 2nd Appellant contended that the trial court shifted the burden of proof and erred in holding that the Appellant ought to explain how the money was spent. The 2nd Appellant also faulted the Court’s failure to consider the capacity in which he was charged, which amounted to a fatal error which rendered the charge sheet and entire proceedings null and void. He also faulted the Court for applying the wrong facts on the charges.

The 3rd Appellant argued that the prosecution evidence was contradictory and that the evidence was not sufficient to support a conviction, thus the prosecution had not proved its case beyond reasonable doubt. He further stated that the trial Court relied on inadmissible evidence and that the findings were not based on actual evidence. The sentence imposed was manifestly excessive and wrong in law.

 

Issues

  1. Whether the charge sheet was defective for mis-joinder and duplicity.
  2. What was required in order to proof an offence of conspiracy to defraud?
  3. Whether an offence of conspiracy could stand against one person.
  4. Whether it was illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences.

 

Held

  1. Section 200(3) of the Criminal Procedure Code required that where a succeeding magistrate commenced the hearing of proceedings and part of the evidence had been recorded by his predecessor, the accused person could demand that any witness be resummoned and reheard and the succeeding magistrate should inform the accused person of that right. The record showed that the Court proceeded to inform the Appellants of their right under section 200(3). The provision was explained to both the Appellants and their respective counsels. Therefore, the trial Court complied with section 200(3) of the Criminal Procedure Code.
  2. Section 199 of the Criminal Procedure Code provided that when a magistrate recorded the evidence of a witness, he should also record such remarks (if any) as he thought material respecting the demeanour of the witness whilst under examination. That provision, as worded, particularly the use of (if any), meant it was not mandatory, and gave the presiding magistrate discretion to record such remarks, if he saw fit, on witnesses’ demeanor. It was well within the law for the succeeding magistrate to proceed on the basis of the recorded evidence even in the absence of remarks as to the demeanor of the witnesses. The 1st Appellant’s argument in that respect failed and that ground of appeal similarly failed.
  3. Section 211 of the Criminal Procedure Code required that where the Court found that a case had been made out against the accused, sufficiently to justify placing the accused on his defence, the Court should again explain the substance of the charge to the accused, and should inform him that he had a right to give evidence on oath from the witness box, and that, if he did so, he would be liable to cross-examination, or to make a statement not on oath from the dock, and should ask him whether he had any witnesses to examine or other evidence to adduce in his defence. The Court should then hear the accused and his witnesses and other evidence (if any). The counsel for the various parties responded appropriately after the explanation and that was a demonstration that the parties understood what was required of them and the ground was consequently dismissed.
  4. Section 134 of the Criminal Procedure Code stipulated that every charge or information should contain, and should be sufficient if it contained, a statement of the specific offence or offences with which the accused person was charged, together with such particulars as could be necessary for giving reasonable information as to the nature of the offence charged.  Injustice would be occasioned where evidence was called relating to many separate counts all contained in one count because the accused could not possibly know what offence exactly he was charged with. In the instant case, the charge sheet had 11 counts of specific offences each with particulars describing the alleged contravention of the law. None of the counts as drafted contained more than one offence and the charges were therefore not bad in law for either duplicity or joinder of counts.
  5. It was not illegal per se to join an alternative charge of conspiracy. Indeed, it was not necessarily illegal to frame a substantive charge of conspiracy together with substantive charges for specific offences. Each case must be considered according to its facts. The following points should be considered;
  1. As a general rule where there was an effective and sufficient charge of a substantive offence, the addition of a charge of conspiracy was undesirable. It was not desirable to include a charge of conspiracy which added nothing to an effective charge of a substantive offence. The conspiracy indeed could merge with the offence.
  2.  To that general rule there were exceptions, as for instance:-
  1. Where it was in the interest of justice to present an overall picture, which a series of relatively small substantive offences could not do; sometimes a charge of conspiracy could be the simpler way of presenting the case.
  2. Where there was clear evidence of conspiracy but little evidence that the conspirators committed any of the overt acts; or where some of the conspirators but not all, committed a few but not all, of the overt acts, a count for conspiracy was justified.
  3. Where charges of substantive offences did not adequately represent the overall criminality disclosed by the evidence, it could be right and proper to include a charge of conspiracy.
  1.  But a count for conspiracy should not be included if the result would be unfair to the defence, and that had always to be weighed with other considerations.
  2.   It could be necessary to try a count for conspiracy separately from substantive counts which were only examples of carrying out the conspiracy.
  3.  Where the evidence disclosed more than one conspiracy, it was undesirable to charge all the conspiracies in one count, but it may not be bad in law as Musinga’s case showed.
  4. Other factors concerned the number and type of conspirators. For instance, the possibility of two being husband and wife, or of two conspirators the possibility that one may be acquitted, might need to be safeguarded.
  1. The question was why or in what circumstances it was undesirable to join a count of conspiracy with counts for substantive offences. The main ground was unfairness to the accused, which was a general consideration. That might arise because the accused might not know with what he was charged with precisely, or might be embarrassed to be obliged to defend in the alternative.
  2. Where an indictment contained substantive counts and a related conspiracy count, the Court required the prosecution to justify the joinder, or failing justification, to elect whether to proceed on the substantive or on the conspiracy counts. A joinder was justified if the Court considered that the interests of justice demanded it. Severance followed from the Court’s inherent powers to see that its process was not abused, in the sense that the Accused was guarded against oppression or prejudice. It was for that purpose that the rule was that the objection must be taken at the earliest opportunity. Therefore, the inclusion of the charges of conspiracy together with substantive offences did not render the charges as drafted defective or undesirable.
  3. Section 23 of the Penal Code recognized offences by corporations in that where an offence was committed by any company or other body corporate, or by any society, association or body of persons, every person charged with, or concerned or acting in, the control or management of the affairs or activities of such company, body corporate, society, association or body of persons should be guilty of that offence and liable to be punished accordingly, unless it was proved by such person that, though no act or omission on his part, he was not aware that the offence was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission. The charges as drafted were proper, and no question of mis-joinder arose. The question of liability would only be determined upon consideration of evidence, and a further determination on whether the 2nd Appellant borne liability as a director of the company.
  4. In order to proof an offence of conspiracy to defraud, the elements to be proved were the existence of an agreement and the intention to defraud the public. It was not enough that two or more persons pursued the same unlawful object at the same place or in the same place. It was necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It was not, however, necessary that each conspirator had been in communication with every other.
  5. An agreement in a charge of conspiracy could be proved in the usual way or by proving circumstances from which the Court presumed it. Proof of the existence of a conspiracy was generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. That required that a common purpose between or among the subject parties was proved. Common intention was set out in section 21 of the penal Code where it was stated that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence was committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them was deemed to have committed the offence. In the instant case, there was no evidence of an express agreement among the appellants to defraud from the facts set out. Since it was an offence of conspiracy, it could not stand against one person. The entire charge therefore failed.
  6. Section 45 of the Anti-Corruption and Economic Crimes Act dealt with offences related to the protection of public property and revenue.  Public property was defined as real or personal property, including money, of a public body or under the control of, or consigned or due to, a public body. Section 45(2)(b) provided that an officer or person whose functions concerned the administration, custody, management, receipt or use of any part of the public revenue or public property was guilty of an offence if the person willfully or carelessly failed to comply with any law or applicable procedures and guidelines relating to the procurement, allocation, sale or disposal of property, tendering of contracts, management of funds or incurring of expenditures.
  7. The charge of failure to comply with the law relating to procurement was against the 1st Appellant because she was the accounting officer in the ministry and as such was enjoined to ensure that public funds under her charge were incurred prudently and in accordance with the law and procedures. From the facts, the actions and omissions of the 1st Appellant amounted to careless failure in that regard. Section 3(a) defined an accounting officer as a public entity other than a local authority, the person appointed by the Permanent Secretary to the Treasury as the accounting officer or, if there was no such person, the Chief Executive of the public entity. Section 27 provided that an accounting officer should be responsible for ensuring that the public entity charged under him complied with the regulations and any directions with respect to each of its procurements. The Act also required that a procuring entity should have a procurement plan in line with its budgeting process. That charge was therefore proved.
  8. The offence of abuse of office charged against the 1st Appellant was couched under section 46 of the Anti-Corruption and Economic Crimes Act where a person who used his office to improperly confer a benefit on himself or anyone else was guilty of an offence. Under Section 2 of the Anti-Corruption and Economic Crimes Act a benefit meant any gift, loan, fee, reward, appointment, service, favour, forbearance, promise or other consideration or advantage. The prosecution was under a duty, in proving the offence to show that the Appellant improperly used her public office to confer a benefit.  It was also crucial as part of the ingredients to show the nature of benefit conferred.
  9. The 3rd Appellant was charged with willful failure to comply with the law relating to procurement. Section 26(3)(c) 48 of the Anti-Corruption and Economic Crimes Act  required that all procurement procedures should be handled by different offices in respect of procurement initiation, processing and receipt of goods, works and services. The obvious objective behind that requirement was to among others ensure transparency and accountability in public processes and related expenditure. Section 29(3) of the Public Procurement and Disposal Act, required approval by the tender committee.  Proper procurement procedure was not followed. None of the documentation presented was in relation to the subject matter.
  10. Section 27(1) of the Public Procurement and Disposal Act provided that subject to the Act, all approvals relating to any procedures in procurement should be in writing and properly dated, documented and filed. He ought to have provided a reasonable explanation as the accounting officer of Kenya Tourism Board. As long as public funds were to be expended whether by contribution or otherwise, the expenditure ought to have undergone the requisite procurement procedure. In line with Section 27, of the Public Procurement and Disposal Act, the 3rd appellant being the managing Director bore the responsibility of ensuring the Kenya Tourism Board complied with the procurement laws. The 3rd appellant failed in that respect, and the guilt on Count VI as charged was confirmed. The 3rd Appellant was also charged with fraudulently making payments from public revenues for services not rendered. From the facts, the charges could not stand as the services were subsequently delivered.
  11. The 2nd Appellant and the 4th Accused (Maniago Safaris) were charged with fraudulent acquisition of public property. Section 45(1)(a) of the Anti-Corruption and Economic Crimes Act created the offence of  fraudulent or otherwise unlawful acquisition of public property or a public service or benefit. Fraudulent actions introduced the element of deception purposed at gaining a benefit. From the facts, the charge was not proved to the required standard.

Appeal allowed with respect to counts I, II, V, VII, X and XI. Conviction quashed and sentences set aside.

Decision upheld with regard to the case against the 3rd Appellant in respect of count IV and against the 1st Appellant in respect of Count VII

Cases

East Africa

1. Kinyanjui v Republic [1988] KLR 76 – (Followed)

2. Omboga v Republic [1983] KLR 340 – (Explained)

Statutes

East Africa

1. Anti-Corruption and Economic Crimes Act, 2003(Act No 3 of 2003) sections 42(3); 45 (2) (a) (iii) (b); 46; 47 (a); 48 – (Interpreted)

2.    Criminal Procedure Code sections 199,134,135,136(1); 200(3); 211- (Interpreted)

3.    Penal Code (cap 63) sections 21, 23,317, 327 – (Interpreted)

4.    Public Procurement and Disposal Act, 2005 (Act No 3 of 2005) sections 2, 3 (a); 26(3) (c); 27(1); 29(3); 74(3);75 – (Interpreted)

Tests & Journals

1. Garner,BA., (Ed) (2009)  Black’s Law Dictionary, St Paul Minnesota :West Group Publishers 9th Edn  p 578

2. Richardson,J (Ed) (2010) Archibold’s Criminal Pleadings, Evidence and Practice  London: Sweet & Maxwell  p 3025 , 3026

Advocates

1.  M/s Betty Mwenesi and Mr Were for the 1st Appellant.

 2. FN Njanja for the 2nd Appellant.

 3.  Mr Saende for the 3rd Appellant.

 4.  Mr Warui for the Respondent.

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