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Court of AppealPartially AllowedCivil Application No. SUP. 4 of 2015 (UR 3/2015)

Koigi Wa Wamwere v Attorney General [2015] KECA 593 (KLR)

Court of Appeal of Kenya
3 July 2015
4,939 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed former detainee Koigi wa Wamwere to take only two narrow legal questions to the Supreme Court, ruling that damages amounts are final.

What this practically means

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Executive summary

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Koigi wa Wamwere, a former political detainee tortured at Nyayo House and held with condemned prisoners at Kamiti's Block G, obtained a High Court declaration and a global award of Ksh.2.5 million for violation of Section 74 of the former Constitution. On appeal, the Court of Appeal (Waki, Kiage and J. Mohammed, JJ.A) enhanced the award to Ksh.12 million with interest. The applicant then sought certification and leave under Article 163(4)(b) of the Constitution to appeal to the Supreme Court on sixteen grounds of general public importance, contending among other things that the judgments below denied him compensation for torture during two periods of detention without trial and during his Nakuru criminal trial. The Court of Appeal (Mwera, Mwilu and Otieno-Odek, JJ.A) applied the Supreme Court's principles in Hermanus Philipus Steyn v Giovanni Gnecchi-Ruscone. It held that the Supreme Court has no jurisdiction to calculate or enhance the quantum of damages, that contests of findings of fact cannot found certification, and declined leave on grounds already determined, academic, or unpleaded. It also held that unnamed 'bad decisions' cannot be the basis of a certified appeal, and that the High Court's floodgates remark was obiter. However, the court found that the meaning of the phrase 'global award' raised a point of law transcending the parties' interests. It partially allowed the application, granting leave and a certificate on two framed questions concerning the meaning of 'global award' and whether the judgments below excluded compensation for the detentions and the criminal trial, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's grounds disclose a matter of general public importance warranting certification and leave to appeal to the Supreme Court under Article 163(4)(b)
  2. 2.Whether the Supreme Court has jurisdiction to determine the quantum of damages awarded to a litigant
  3. 3.What is the meaning and/or legal interpretation of the phrase 'global award'
  4. 4.Whether the judgments below excluded compensation for torture during the two periods of detention without trial and for violations during the Nakuru criminal trial
  5. 5.Whether a substantial miscarriage of justice would occur unless the appeal is heard by the Supreme Court

Key legal issues

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01

What constitutes a matter of general public importance for certification under Article 163(4)(b)

Holding

A matter of general public importance is one of law or fact whose impact and consequences are substantial, broad-based and transcend the litigation interests of the parties; determinations of fact are not by themselves a basis for certification.

Reasoning

The court restated the governing principles from the Supreme Court's decision in Hermanus Philipus Steyn, including that the issue must transcend the particular case, bear on the public interest, and have been the subject of judicial determination in the courts below. Mere apprehension of miscarriage of justice is not a proper basis for certification. Applying these principles, the court found only the interpretation of 'global award' qualified.

p. 5
02

Whether the Supreme Court may engage with the quantum of damages on a certified appeal

Holding

The Supreme Court is not a trial court and has no jurisdiction to calculate, determine or enhance the quantum of damages; quantum as awarded by the Court of Appeal is final and not appealable.

Reasoning

While the principles used in calculating quantum are principles of law, the quantum awarded is a matter of fact. An intended appeal engaging the Supreme Court in calculating and enhancing damages would merely contest concurrent findings of fact by the High Court and Court of Appeal, which cannot be certified as a matter of general public importance.

p. 6
03

Whether the phrase 'global award' in the judgments below discloses a point of law of general public importance

Holding

The meaning of 'global award' transcends the circumstances of the case and bears on the administration of justice and the public interest, warranting certification on two framed questions.

Reasoning

The court took judicial notice that global sums are frequently awarded in judgments and consent orders to settle claims. Since a dispute arose as to the meaning and import of the phrase in this case, the applicant demonstrated a point of law transcending the parties' circumstances. The court framed only two questions: the meaning of 'global award' and whether the judgments below excluded compensation for the detentions and the Nakuru criminal trial.

p. 8
04

Whether the Supreme Court can be asked to overrule unnamed 'bad decisions'

Holding

Alleged conflicting precedents must be identified and cited case by case; the Supreme Court's appellate jurisdiction cannot be invoked over decisions neither identified nor cited.

Reasoning

The applicant neither identified nor cited the 'bad decisions' he sought to have overruled. The court noted that the doctrine of stare decisis is replete with instances of decisions being overturned or distinguished, and that its own practice allows a five-judge bench to consider or reconcile conflicting decisions. Deploying judicial time on such a fishing expedition would offend the precept of conscientious deployment of scarce public resources.

p. 7

Legal principles established

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  • The Supreme Court has no jurisdiction to calculate or enhance the measure and quantum of damages, which is a matter of fact not certifiable as a matter of general public importance.
  • A contestation of findings of fact between parties cannot of itself be a basis for granting certification for an appeal to the Supreme Court.
  • Certification under Article 163(4)(b) requires the intending appellant to identify and concisely set out the specific elements of general public importance, and issues not pleaded or determined in the courts below cannot found certification.

Court orders

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  1. 1.Notice of Motion dated 19th March 2015 allowed in part to the extent that only two questions are forwarded to the Supreme Court for consideration and determination
  2. 2.Leave granted and Certificate issued to appeal to the Supreme Court on the two framed questions
  3. 3.Each party to bear its own costs in the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 86 of 2013
Jurisdiction invoked
Article 163(4)(b) of the Constitution of Kenya 2010 - certification and leave to appeal to the Supreme Court on a matter of general public importance

Relief refused

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Leave to appeal on the ground seeking enhancement of quantum of damages (Paragraph 2(h))

Quantum is a matter of fact; the Supreme Court has no jurisdiction to calculate the measure and quantum of damages

p. 6

Leave to appeal on grounds in Paragraphs 2(a)(b)(c)(d)(e)(f)(g) and (i)

These grounds were already determined by the High Court and Court of Appeal in the declaration that the applicant's fundamental rights were violated

p. 7

Leave to appeal on grounds in Paragraph 2(n) and (o)

The issues were neither pleaded, canvassed, considered nor determined by the courts below and are theoretical and academic

p. 7

Leave to appeal on ground 2(k) regarding unnamed 'bad decisions'

The alleged conflicting precedents were neither identified nor cited; invoking the Supreme Court would be a fishing expedition

p. 7

Leave to appeal on ground 2(m) on the floodgates of litigation concern

The High Court's floodgates remark was obiter and not the basis of its decision

p. 8

Leave to appeal on the ground of substantial miscarriage of justice

No glaring failings in the judicial process were demonstrated

p. 8

Costs

Each party shall bear its costs in this application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that we find that the Notice of Motion dated 19 th March 2015 partially has merit and we hereby allow the application to the extent that only two questions are forwarded to the Supreme Court for consideration and determination.
p. 9Disposition - partial certification and leave granted
We grant leave and issue a Certificate to appeal to the Supreme Court. The questions and issues for determination by the Supreme Court are as enumerated above. We order that each party shall bear its costs in this application.
p. 9Final orders - certificate, leave and costs
We find and hold that the Supreme Court has no jurisdiction to calculate quantum.
p. 6Supreme Court jurisdiction and damages
a) What is the meaning and or legal interpretation of the phrase global award?
p. 8First question certified to the Supreme Court
b) Given the definition of global award as shall be determined in (a) above, did the Judgment of the Court of Appeal dated 6th March 2015 as read with the Judgment of the High Court dated 28th March 2012 awarding the applicant a global award of Ksh.12 000,000/= for violation of his rights under Section 74 of the former Constitution exclude and decline compensation for torture, inhuman and degrading treatment of the applicant while he was in prison during 2 periods of detention without trials
p. 8Second question certified to the Supreme Court
Such a contestation and determination of fact in contests between parties cannot be in itself, a basis for granting certification for an appeal before the Supreme Court.
p. 6Findings of fact are not a basis for certification
the judicial time of the Supreme Court should not be deployed in a fishing expedition on issues that do not disclose a matter of general public interest
p. 7Conscientious deployment of judicial resources

Issues in the judgment

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minor

The coram spells the third judge's name with a zero: 'OTIEN0-ODEK, JJ.A', while the signature block reads 'J. OTIENO-ODEK'; the corrected signed spelling is used throughout this brief.

minor

The judgment contains internal inconsistencies in the applicant's quoted grounds, e.g. the criminal case is referred to both as 'Criminal Case No. 2273/92' and 'Criminal Case No. 2273/93', and dates are inconsistently rendered ('from 8th October 1990 to 19th October 1990 and torture at Kamiti Maximum Security Prison from 19th October 1990 to (sic) 19th January 1993').

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Koigi Wa Wamwere v Attorney General [2015] KECA 593 (KLR)", Case Analysis (2015). Civil Application No. SUP. 4 of 2015 (UR 3/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/593/eng@2015-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.