Weekly Newsletter 006/2021



Kenya Law

Weekly Newsletter


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Kenya Law
Case Updates Issue 009/2021
Case Summaries

CONSTITUTIONAL LAW Conservatory orders issued restraining the Independent Electoral and Boundaries Commission from subjecting the Constitution Amendment Bill, 2020 (BBI Bill) to a referendum

David Ndii & others v Attorney General & others (2021) eKLR
Petition No. E282 of 2020
(Consolidated with Petition Nos. 397 of 2020, E400 of 2020, E401 of 2020, E402 of 2020, E416 of 2020 and E426 of 2020)
High Court at Nairobi
J.M Ngugi, G.V Odunga, J. Ngaah, J.N Mulwa & E.C Mwita, JJ
February 8, 2021
Reported by Chelimo Eunice

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Constitutional Law – constitutional petitions - interlocutory applications in constitutional petitions – conservatory orders – meaning and import of conservatory orders - principles to be considered when determining whether or not to grant conservatory orders – principles to be considered when determining whether or not to grant conservatory orders in constitutional petitions - the requirement to demonstrate an arguable prima facie case with a likelihood of success – meaning of a prima facie case – whether conservatory orders would be issued against a public body which had followed the constitutional edict – whether County Assemblies and Parliament would be halted from debating a Constitutional Amendment Bill on the basis of an allegedly flawed process – whether by failing to issue conservatory orders, the court would eventually be barred from interrogating all the events that would be undertaken in the entire process of amending the Constitution.

.Brief facts:
The President on May 24, 2018 appointed the Task Force on Building Bridges to Unity Advisory (BBI Taskforce)whose mandate was, inter alia, to evaluate the national challenges outlined in the Joint Communiqué of Building Bridges to a New Kenyan Nation, and having done so, make practical recommendations and reform proposals that build lasting unity. On November 26, 2018, the BBI Taskforce presented its report. The President then appointed a Steering Committee on the implementation of the report whose terms of reference included proposal of administrative policy of constitutional changes that would be necessary for the implementation of the recommendations contained in the taskforce report. The Steering Committee submitted its report on October 21, 2020.
According to the petitioners, the Steering Committee’s report consisted of a raft of proposals on constitutional and legislative amendments as well as Constitution of Kenya (Amendment) Bill 2020 (Constitutional Amendment Bill), Draft Legislative Bills, administrative measures, among others. They sought to challenge the content of and the process by which the Constitutional Amendment Bill was formulated and the steps that had been and were intended to be taken in an effort to amend the Constitution. They contended that the contents and the processes violated the Constitution. In total, 7 petitions were filed by various petitioners. With the concurrence of all the parties, the 7 petitions were consolidated.
The 25th interested party sought a conservatory order barring the 3rd to 49th interested parties (County Assemblies) from considering the Constitutional Amendment Bill submitted to them by the Independent Electoral and Boundaries Commission (the Commission) pending the hearing of the petitions. It was averred, among others, that the petitions raised important and fundamental constitutional questions concerning, inter alia, the lack of clear, regular, and uniform standards by which County Assemblies would process a popular initiative bill, and as such the applicants were apprehensive that without court’s intervention, County Assemblies could undertake a legislative process that ultimately would be held to be unconstitutional for failing to meet mandatory constitutional prescripts, therefore null and void.
Another motion was filed drawing the court’s attention to the Commission’s statement of January 26, 2021 confirming that it was submitting the Constitutional Amendment Bill to each of the 47 County Assemblies for consideration. The applicants argued, among others, that they were apprehensive that by the time the petitions were determined of the questions posed for determination would have been rendered superfluous by the unfolding events and that colossal public funds were likely to have been expended in a process that would well be found to have been unconstitutional.

Issues:

  1. What were the principles to be considered when determining whether or not to grant conservatory orders?
  2. Whether conservatory orders could be issued against a public body which had followed the constitutional edict.
  3. Whether the court had the power to intervene in the legislative process of the Parliament and the County Assemblies at any stage?
  4. Whether the activities of Parliament and the County Assemblies in the legislative process of the Constitutional Amendment Bill, 2020, were likely to entail the utilization of huge amounts of money that would be outside the routine legislative process.
  5. Whether by failing to issue conservatory orders, the court would be eventually barred from interrogating all the events that would be undertaken in the entire process of amending the Constitution. Read More..

Held:

  1. At interlocutory stage, the court was forbidden from making definite and conclusive findings of either fact or law as to do so would prejudice the hearing of the main petitions. A party seeking a conservatory order only required to demonstrate that he had a prima facie case with a likelihood of success and that unless the court granted the conservatory order, there was real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution. In the context of the Constitution, a third condition would be added, namely, that it was in the public interest that the order of stay be granted. That third condition was dictated by the expanded scope of the Bill of Rights and the public spiritedness that ran through the Constitution. In considering whether or not to grant conservatory order, the principle of proportionality ought also to be taken into account. A court, in responding to prayers, ought to always opt for the lower rather than the higher risk of injustice.
  2. The principles guiding the decision whether or not to grant conservatory orders were:
    1. the applicant ought to demonstrate an arguable prima facie case with a likelihood of success, and that in the absence of the conservatory orders sought, he was likely to suffer prejudice as a result of the violation or threatened violation of the Constitution;
    2. once the applicant had established to the court's satisfaction a prima facie case with a likelihood of success, the court was then to decide whether a grant or denial of the conservatory relief would enhance the constitutional values and objects of the specific right or freedom of the Bill of Rights;
    3. flowing from the first two principles was whether, if an interim conservatory order was not granted, the petition or its substratum would be rendered nugatory. It was the business of the court to ensure and secure as far as possible that any transitional motions before the court did not render nugatory the ultimate end of justice;
    4. the court had to consider conservatory orders in the face of public interest dogma; and
    5. the court was to exercise its discretion in deciding whether to grant or deny a conservatory order. The court had to consequently consider all relevant material facts and avoid immaterial matters. It had to consider the applicant's credentials, the prima facie correctness of the availed information, whether the grievances were genuine, legitimate, and deserving, and finally, whether the grievances and allegations were grave and serious or merely vague and reckless.
  3. A prima facie case was not a case which had to succeed at the hearing of the main case. However, it was not a case which was frivolous. It had to be shown that a case which disclosed arguable issues had been raised and in the instant case, arguable constitutional issues.
  4. The petitioners not only contended that there had not been any public participation in the process but that their right to fair administrative action under article 47 of the Constitution had or were under threat of being violated or contravened. A party seeking an order for a declaration that the Constitution had been contravened or was threatened with contravention was not necessarily undeserving of the conservatory orders under article 23(2)(c) of the Constitution as long as he brought himself within the ambit of the provisions of article 23 of the Constitution, which the petitioners had done. The petitions were within the purview of article 23 of the Constitution.
  5. Conservatory orders were orders in rem. They were not a preserve of particular persons but were meant to advance the mandate of Kenyans to respect, uphold and defend the Constitution as mandated in article 3(1) of the Constitution. It, therefore, followed that the argument by the Commission that since it had followed the constitutional edict, adverse orders could not be issued against its mandate was untenable. Such orders were granted to preserve the substratum of the petition and therefore, where it was contended that there was a threat of violation of the Constitution. Any stage in the chain of a constitutional process under challenge would properly be the subject of a conservatory order as long as that action was consequential to the process under challenge. Conservatory orders would be granted on an application or by the court suo moto as long as the court was satisfied that the constitutional threshold for doing so had been met. Therefore, without arriving at definite findings, the issues raised in the petitions disclosed prima facie arguable issues for trial. It could not be said that the said issues were wholly frivolous or unarguable at the instant stage.
  6. On the aspect of real danger, the danger had to be imminent and evident, true and actual and not fictitious, so much so that it deserved immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that was remote and unlikely would not attract the court’s attention.
  7. It would seem that the matter was at the stage contemplated under article 257(5) of the Constitution at which the County Assemblies were required to consider the Constitutional Amendment Bill within three months of the submission of the same. At the instant stage, it could not be stated with certainty that the requisite number of the County Assemblies would pass the Constitutional Amendment Bill. Similarly, it could not be stated with certainty that they would, in arriving at their respective decisions, contravene the constitutional provisions. It would, therefore, be speculative to base court’s decision on the manner in which the County Assemblies were likely to undertake their constitutional mandate. Based on the same grounds, it could not be stated with certainty how Parliament would deal with the Constitutional Amendment Bill, assuming it would ever end up there.
  8. The contention that since some of the issues for determination revolved around the process that had been adopted by the promoters of the Constitutional Amendment Bill, unless that process was halted, the substratum of the petitions would cease to exist by the time the court determined the petitions was not an entirely accurate proposition. Since one of the issues placed before the court for determination was whether the entire process was undertaken constitutionally, the court was not barred from interrogating all the events that had been undertaken in the entire process. In determining the petitions, the court would not be restricted to the end product but will be enjoined to interrogate the constitutionality of the entire process in arriving at its decision whether or not the provisions of the Constitution were or had been complied with. The substratum of the petitions would not be lost simply because certain processes would have been taken towards the amendment of the Constitution.
  9. Even if the legislative processes in Parliament and County Assemblies were to be completed, the court would not be handicapped in granting appropriate relief to protect the Constitution and nothing would bar it from carrying out its constitutional mandate when called upon to do so and where the circumstances warranted and justified it. Therefore, notwithstanding the legislative processes by both Parliament and the County Assemblies, the court reserved the jurisdiction to determine whether or not those processes were in accordance with the letter and spirit of the Constitution and to pronounce itself accordingly.
  10. There was no evidence at the instant stage that the activities of Parliament and the County Assemblies in the process were likely to entail the utilization of huge amounts of money that would be outside the routine legislative process of Parliament and County Assemblies. It was, however, true that if the Constitutional Amendment Bill was subjected to a referendum, the likely amount to be spent in the said process would run into billions of shillings. In that event, and if it would be found that process was unconstitutional, the Country’s scarce financial resources would have been unnecessarily expended. Apart from that, if the Constitutional Amendment Bill were to be passed in a referendum, the substratum of the petitions would be substantially altered and the orders that could be made, based on the instant petitions, would well be merely academic.
  11. Notwithstanding the fact that the court declined to interfere with the legislative processes in the County Assemblies and Parliament a priori, it had the power to intervene even at the tail end of the process. There was no such doctrine as constitutional fait accompli. Parliament and the County Assemblies, even as they consider the Constitutional Amendment Bill in the face of the petitions, had to be aware that the court had the requisite jurisdiction and obligation to declare such actions unconstitutional and, therefore, invalid, ex post facto if, upon the conclusion of the petitions, the court answers some or all the questions presented by the petitioners in their favour. Rushing the Constitutional Amendment Bill through County Assemblies and eventually Parliament, did not inoculate the resultant proposed constitutional amendment from the possibility that it could yet, upon final disposition of the petitions, be declared invalid.
  12. without deciding with finality the issues raised in the petitions and while not agreeing that the processes intended to be taken by the County Assemblies and Parliament would render the petitions superfluous, it was in the public interest that appropriate conservatory orders be granted.

Application partly allowed with no order as to costs.
Order
Conservatory order issued restraining the Independent Electoral and Boundaries Commission from facilitating and subjecting the Constitution (Amendment) Bill, 2020 to a referendum, or taking any further action to advance the Constitution (Amendment) Bill, 2020, pending the hearing and determination of the Consolidated Petitions.

CONSTITUTIONAL LAW

Detention of a patient in hospital as means of debt collection for unpaid medical bills is unlawful.

Emmah Muthoni Njeri v Nairobi Women’s Hospital [2021] eKLR
Petition 352 of 2018
High Court at Nairobi
W Korir, J
March 4, 2021
Reported by Beryl Ikamari

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Constitutional Law - fundamental rights and freedoms - right to dignity, right to freedom and security of the person, and right to freedom of movement - lawfulness and constitutionality of detention of patients in hospital as a means of debt collection - whether a detained patient had her right to dignity, right to freedom and security of the person, and right to freedom of movement violated by the hospital.

Brief facts:
The petitioner was admitted at Nairobi Women's Hospital on March 23, 2018 and was discharged on May 14, 2018 and she had an accumulated hospital bill of Kshs. 3,140,144.39. She was able to pay a portion of it (Kshs. 1,351,510) and she was detained at the hospital after her proposals on how to pay the remainder of the bill were rejected. On October 10, 2018 her hospital bill had risen to Kshs. 4,029,429.16. The petitioner alleged that her rights to equality and freedom from discrimination, human dignity, freedom and security of the person and freedom of movement had been infringed by the respondent. The petitioner sought remedies from the court and they included an injunction to compel the respondents to release her from the hospital and monetary compensation. The respondent filed a cross-petition. The respondent explained that the petitioner was released from hospital on October 19, 2018 after undertaking to pay the outstanding bill at the rate of Kshs. 10, 000 per month until it was paid in full. It also sought orders for the court to compel the petitioner to make payments for the unpaid medical bill.

Issues:

  1. Whether it was lawful for a hospital to detain patients for purposes of collection of unpaid medical bills.
  2. Whether detention of patients in a hospital for purposes of debt collection was a violation of the patients' right to dignity, right to freedom and security of the person, and right to freedom of movement. Read More...

Held:

  1. The law did not empower the respondent to hold any person within the hospital for failure to pay medical bills. Although the petitioner failed to meet the contractual obligation to pay her medical bill, the respondent had open options on how payments could be made and it should not have detained the petitioner. Therefore, it was unlawful for the respondent to detain the petitioner for six months for failure to meet medical expenses.
  2. The unlawful detention of the Petitioner for failure to pay the hospital charges violated her dignity, right to freedom and security of the person, and right to freedom of movement. However, the petitioner failed to show how her right to equality and freedom from discrimination was violated. She had not shown that she was treated differently from other persons who were in a similar situation. The petitioner's claim with respect to the right to equality and freedom from discrimination had not been established.
  3. Article 23(3) of the Constitution mandated the court to grant appropriate relief to remedy violations of fundamental rights and freedoms. Two of the petitioner's prayers which were about her detention had been overtaken by events as the petitioner was released from hospital on October 19, 2018.
  4. Monetary compensation could be awarded where a petitioner’s rights had been violated in order to vindicate the infringed constitutional right. Moreover, an additional award could be made to vindicate the public and deter a respondent from carrying out other breaches.
  5. There was not evidence that the petitioner was subjected to torture or inhuman or degrading treatment during her detention.
  6. The petitioner did not lay a basis for the award of exemplary damages. An award of general damages would be sufficient as a remedy for a violation of her rights.
  7. The respondent's cross-petition did not disclose a violation of the respondent's constitutional rights and it was being used to collect debts. Generally, collection of debts should not be pursued through constitutional petitions. To save judicial time, the respondent was not asked to file a civil claim for the collection of the unpaid medical bill.
  8. At the point of discharge on May 14, 2018, the petitioner paid a portion of her medical bill and had a balance of Kshs. 1,784,634.39. The petitioner had no obligation to pay bills arising out of her unlawful detention as no person should be compensated for costs or expenses incurred in the commission and perpetuation of unconstitutional acts.

Petition and Cross-petition allowed.
Orders:-

  1. A declaration that in unlawfully detaining the petitioner for failing to pay her medical bill, the respondent infringed upon the petitioner's constitutional rights and fundamental freedoms under articles 28, 29 and 39 of the Constitution.
  2. The petitioner was awarded a sum of Kshs. 3 million as general damages subject to a deduction of Kshs. 1,784,634.39 which was the unpaid medical bill. The total award of general damages to the petition was therefore Kshs. 1,215,365.61.
CIVIL PRACTICE AND PROCEDURE

Failure to indicate the provisions under which a party was moving the court is a defect that cannot be remedied through written submissions.

Margaret Wanjiru Wainaina & another v James Njenga Kinyanjui & 3 others [2021] eKLR
Application 30 of 2020
Supreme Court of Kenya
PM Mwilu, Ag CJ & Ag P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ
March 5, 2021
Reported by Beryl Ikamari

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Civil Practice and Procedure - review - review of decisions of the Supreme Court - circumstances under which the Supreme Court would exercise its review jurisdiction in relation to its decisions - Supreme Court Rules, 2020, rules 3(25) and 28(5).
Civil Practice and Procedure - petition of appeal - form and content - indication of provisions that a party sought to rely on when moving the Supreme Court in a petition of appeal - whether failure to indicate such provisions could be remedied by the filing of submissions.

Brief facts:
The applicants sought a review of the ruling and orders of the Supreme Court with respect to a preliminary objection. They said that the decision was made due to a failure to consider their written submissions and unjustifiably denied them a fair hearing. The respondent said that there was inordinate delay in the filing of the submissions in question and those submissions could not cure the defect of failing to indicate the provisions under which the applicants were moving the court, in the applicants' petition of appeal.

Issues:

  1. When would the Supreme Court review its decisions?
  2. Whether failure to indicate the legal provisions under which a party was moving the Supreme Court in its petition of appeal was a defect that could be remedied through written submissions. Read More...

Held:

  1. Rules 3(25) and 28(5) of the Supreme Court Rules, 2020 granted the court jurisdiction to consider an application for a review of its decisions. The court could therefore consider the review application.
  2. The application did not satisfy the principles set by the court for purposes of reviewing its decisions. The principles were set out in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others SC Petition (App.) No. 4 of 2012; [2013] eKLR and Fredrick Otieno Outa v Jared Odoyo Okello & 3 others SC Petition No. 6 of 2014; [2017] eKLR.
  3. The applicants did not lay a basis for the court to consider and depart from its decision dated September 4, 2020.
  4. The applicants did not provide the constitutional or statutory provisions that they relied on in moving the court in their petition of appeal. That was a defect which could not be remedied through submissions.

Orders:-

  1. The notice of motion application by the applicants dated October 29, 2020 and filed on October 30, 2020 was dismissed.
  2. Each party was to bear its costs.
CONSTITUTIONAL LAW

Exemplary damages are not payable where one challenged violation of rights and fundamental freedoms in the Bill of Rights

Bernard Muhilana Shimanyula v Attorney General & 7 others [2020] eKLR
Civil Suit No. 291 of 2003 (O.S)
High Court at Mombasa
EK Ogola, J
August 5, 2020
Reported by Kakai Toili

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Constitutional Law – constitutional remedies – compensation - rationale for granting compensation in cases of breach or violation of rights and fundamental freedoms - whether exemplary damages were payable where one had challenged violation of rights and fundamental freedoms in the Bill of Rights.
Evidence Law -witnesses – matters to be deponed by witnesses - whether a witness could depone matters of facts and events that happened when he was not there - Evidence Act, Cap 80 Laws of Kenya, section 33.
Constitutional Law – fundamental rights and freedoms – right not to be subjected to torture or inhuman or degrading punishment or other treatment – what was the nature of torture – Constitution of Kenya (Repealed), section 74(1).

Brief facts:
The plaintiff claimed that on August 3, 2001, the 4th, 5th, 6th, 7th and 8th defendants (defendants) while on patrol duty, attacked and assaulted the residents of Shauri Yako estate alleging that one of them was hiding a gun. The plaintiff stated that without any provocation, the defendants brutally assaulted him leaving him unconscious, and as a result of the assault, he sustained grievous injuries to his left eye, which led to the loss of vision in that eye. The plaintiff further claimed that he was arrested, and illegally detained.
The plaintiff stated that all his complaints on assault by the defendants were ignored, and that he was never issued with a P.3 form. The plaintiff averred that he was arraigned in court on August 17, 2001, and was released on bond. The plaintiff contended that his rights under the repealed Constitution were grossly violated by the 1st defendant’s officers. The plaintiff thus sought for orders that; a declaration that the assault perpetrated on the plaintiff was a gross violation of the plaintiff’s fundamental rights under section 74 of the repealed Constitution not to be subjected to torture or to inhuman or degrading punishment or other treatment; and orders for general and exemplary damages for callous and reprehensible behavior.

Issues:

  1. Whether a witness could depone matters of facts and events that happened when he was not there.
  2. What was the nature of torture?
  3. What was the rationale for granting compensation in cases of breach or violation of rights and fundamental freedoms ?
  4. Whether exemplary damages were payable where one had challenged violation of rights and fundamental freedoms in the Bill of Rights . Read More...

Relevant provisions of the law
Constitution of Kenya (Repealed)
Section 72(3)
A person who is arrested or detained –

(a) for the purpose of bringing him before a Court in execution of the Order of a Court; or
(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a Court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.

Section 74(1)
No person shall be subject to torture or to inhuman or degrading punishment or other treatment.

Evidence Act (Chapter 80 of the Laws of Kenya)
Section 33
Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following ases

a) relating to cause of death;
b) made in the course of business
c) against the interest of maker
d) an opinion as to public right or custom
e) relating to existence of relationship
f) relating to family affairs
g) relating to a transaction creating or asserting, etc., a custom
h) made by several persons and expressing feelings.

Held:

  1. The 4th to 8th defendants never called evidence to rebut the account of what transpired as narrated by the plaintiff. The admissibility of the 3rd defendant’s averments had to be weighed against the provisions of section 33 of the Evidence Act (Chapter 80 of the Laws of Kenya), which dealt with statements by persons who could not be called as witnesses, and laid out the kind of statements that constituted exceptions to the hearsay rule. The averments by the 3rd defendant with regard to what happened to the plaintiff during his arrest and the alleged interrogation could at best be described as hearsay because, there was nothing that had been placed before the court to show that the 4th to 8th defendants were incapable of swearing to the events that were deponed to in the 3rd defendant’s affidavit.
  2. It was not alleged that the 4th to 8th defendants were deceased, or that they could not be found to make the averments of fact that the 3rd defendant purported to make on their behalf, or that for any other reason they could not swear affidavits themselves to place before the court the evidence that they wished to rely on in their defence to the alleged violation of the plaintiff’s constitutional rights. In any event, the averments by the 3rd defendant with regard to what happened to the plaintiff did not fall within any of the exceptions allowed by section 33 of the Evidence Act. The 3rd defendant had no capacity to depone matters of facts and events that happened when he was not there. Therefore, the plaintiff’s account on his brutal assault by the 4th to 8th defendants remained uncontroverted.
  3. Section 70(b) of the repealed Constitution guaranteed the right to life, liberty, security of the person and the protection of the law so long as that right did not jeopardize the right of others. The plaintiff was charged with an offence that did not carry the death penalty. Consequently, under section 72(3) of the repealed Constitution, he should have been charged in court within 24 hours of his arrest.
  4. The burden of proving that the plaintiff was brought to court as soon as was reasonably possible as required under section 72(3)(b) of the repealed Constitution was on the 3rd defendant. No evidence was led by the 3rd defendant to demonstrate that there was reasonable belief that the plaintiff had committed a capital offence to warrant his detention for more than 24 hours. Further, the arresting officers never gave their testimony on oath. There was violation of the plaintiff’s constitutional rights when he was detained beyond the period allowed in law, and there was no attempt to justify that violation.
  5. Torture meant inflicting of intense pain to the body or mind; to punish, to extract confession or information or to obtain sadistic pleasure. It meant infliction of physical founded suffering or the threat to immediately inflict it, where such infliction or threat was intended to elicit or such infliction was incidental to means adopted to elicit, matters of intelligence or forensic proof and the motive was one of military, civic or ecclesiastical interest. It was a deliberate inhuman treatment causing very serious and cruel suffering. Inhuman treatment was physical or mental cruelty so severe that it endangered life or health. It was an intentional act which, judged objectively, was deliberate and not accidental, which caused serious mental or physical suffering or injury or constituted a serious attack or human dignity.
  6. The plaintiff suffered physical injuries in the hands of the defendants. The medical report indicated the nature and extent of that injury, which was 50% permanent disability to his visionary powers as a result of the ensuing blindness in the left eye.
  7. The plaintiff had proved that he was assaulted by the 4th to 8th defendants acting in their official capacity and in their course of duty, and their actions, fell within the definition of torture. Not only was torture prohibited by the Constitution but, the repealed Police Act at section 14A also expressly prohibited police officers from subjecting any person to acts of torture, cruel, inhuman or degrading treatment. The plaintiff was subjected to torture, inhuman and degrading treatment in contravention of his rights as provided for under section 74 of the Constitution.
  8. The reason forgranting compensation in cases of breach or violation of rights and fundamental freedoms was not to return a person to the position he was before the violations, but to act as a deterrent against similar violation in the future.
  9. On the award of damages, the court determined what was appropriated based on the circumstances of the case. In the instant originating summons, the plaintiff was arrested on August 3, 2001, and unlawfully held until August 17, 2001, when he was arraigned before a Magistrate Court. That was a period of 14 days of unlawful confinement. The plaintiff had suffered a 50% partial permanent disability as he was blind in his left eye, which was a result of torture by the 4th to 8th defendants. That kind of damage would never be repaired, and no award would be sufficient to redress the same.
  10. Exemplary damages were not payable where one had challenged violation of rights and fundamental freedoms in the Bill of Rights.

Application partly allowed; costs and interest of the originating summons were to be for the plaintiff.
Orders:

  1. A declaration was issued that fundamental rights and freedoms of the plaintiff protected under sections 72(3)(b) and 74(1) of the repealed Constitution were violated by the 4th to 8th defendants who were agents of the 1st to 3rd defendants.
  2. The plaintiff was awarded Kshs. 1, 500, 000 as damages for the violation in (i) above.
  3. A further sum of Kshs. 1,500,000 was awarded to the plaintiff being general damages for loss of the plaintiff’s left eye.

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