Kemoi v State & another (Civil Appeal E043 of 2022) [2023] KECA 1542 (KLR)
The bottom line
#Kenya's Court of Appeal more than quintupled damages for a man tortured in police custody, signalling courts will pay real compensation for state brutality.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant is entitled to an enhancement of the award of damages made by the trial court for violation of his fundamental rights
Key legal issues
#Whether the award of Kshs 1,500,000/- for violation of the appellant's rights (torture and permanent disability while in custody) was inordinately low
Yes; the award was enhanced to Kshs 8,000,000/- with interest from the date of the High Court judgment
The Court, guided by Selle v Associated Motor Boat Co., re-assessed the evidence as a first appeal. Applying the Butt v Khan and Kenya Bus Services principles, it found the award represented an entirely erroneous estimate given the permanent disability, the appellant's age, his impending release and loss of capacity for gainful employment, by comparison with comparable awards such as Peter M. Kariuki and Denish Gumbe Osire.
Whether the Court could revisit the finding on violation of constitutional rights (liability)
No; the appeal was limited to quantum and there was no cross-appeal on liability
The respondents, though maintaining that the appellant had not met the threshold for violation, had not filed a cross-appeal. The Court therefore confined itself to the award of damages, the only matter properly before it, and declined to consider whether liability was properly founded.
Legal principles established
#- An appellate court will not interfere with the quantum of damages awarded by a trial court unless it acted on a wrong principle, misapprehended the facts, or the award is so inordinately high or low as to be a wholly erroneous estimate.
- On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence and draw its own conclusions, making due allowance for the fact that it neither saw nor heard the witnesses.
- In the absence of a cross-appeal, an appellate court has no legal basis to review a determination of the trial court, such as on liability, that no party has challenged.
Court orders
#- 1.Award of Kshs 1,500,000/- by the High Court enhanced to Kshs 8,000,000/- with interest from the date of the judgment of the High Court
- 2.Appeal allowed with costs to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- First appeal to the Court of Appeal against the quantum of damages awarded by the High Court in a constitutional petition
Relief refused
#Enhancement to the Kshs 15,000,000/- sought by the appellant
The Court found a lower global award sufficient in the circumstances
Exemplary damages as a distinct head
The Court awarded a global sum rather than separate exemplary damages
Costs
The appeal is allowed with costs to the appellant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we find that an award of ksh 8,000,000/- with interest from the date of the judgment of the High Court will be suficient compensation in the circumstances. Accordingly, the appeal is allowed with costs to the appellant.
The appeal before us is limited to the award of damages, and as such we shall not delve into the threshold for violation of constitutional rights.
an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law
An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled.
we are persuaded that the award of ksh1,500,000/- was inordinately low, given that the appellant sufiered a permanent disability.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemoi v State & another (Civil Appeal E043 of 2022) [2023] KECA 1542 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1542/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.