https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8247

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. 602 OF 2017** **STEPHEN NJOROGE MBURU……..……….…….……… PETITIONER** **VERSUS** **THE HON. ATTORNEY GENERAL……...…..….. 1ST RESPONDENT** **THE PRINCIPAL SECRETARY** **MINISTRY OF INTERIOR AND** **COORDINATION OF NATIONAL** **GOVERNMENT………………………………………..2ND RESPONDENT** **JUDGMENT** **Brief Facts** 1. The petitioner herein filed a petition dated 17th November 2017 against the Hon Attorney General, the principal legal advisor to the national government and the Principal Secretary in the Ministry of Interior and Coordination of National Government, for violation of his rights and fundamental freedoms by state agents. The petition was heard vide viva voce evidence and the court rendered its judgment on 18th January 2019 dismissing the petition on the ground that there was a delay in filing the petition as the infringements took place in the year 1991 but the petition was filed in the year 2017, which is about 26 years later. 2. The petitioner lodged an appeal before the Court of Appeal and his main ground of appeal was the holding by the Learned Judge that his claim was defeated on account of his delay in filing his petition. The appellate court delivered its judgment on 9th May 2025 finding that the delay in filing the petition was sufficiently explained particularly in his witness statement. The appellate court thereafter set aside the decision of the High Court dismissing the petition and remitted the matter before this court for the purpose of assessing damages payable to the petitioner. 3. The petitioner relied on his submissions filed in the High Court and supplementary submissions dated 1st September 2025. In the submissions filed on 29th March 2018, the petitioner argued that the court in the recent past awarded damages to Nyayo House torture victims ranging from Kshs. 5 million to 900 million. He relied on the cases of **Petition No. 340, 341, 342 & Others of 2009 Jennifer Muthoni Njoroge & Others vs The Hon Attorney General;** the case of **Petition No. 94 of 2014 Kenneth Stanley Njindo Matiba vs The Hon. Attorney General** where the petitioner was awarded Kshs. 15 million for torture, degrading and inhuman treatment and medical costs of Kshs. 18,146,631.52/- and Kshs. 471,604,258/- for collapsed business. Further in **C.A. No. 86 of 2013 Koigi Wamwere vs The Hon. Attorney General** where the court enhanced damages awarded to the petitioner from Kshs. 2.5 million to Kshs. 15 million. The petitioner proposed an award of Kshs. 20 million for the 15 days he was tortured and Kshs. 6,591,520 million for medical costs. 4. In his supplementary submissions, the petitioner has relied on the cases of **Timothy Mwasame Mulombi vs The Hon. Attorney General Petition No. E004 of 2021** where the court awarded the petitioner Kshs. 15 million for damages and **Josephat Kabagendi Mogaka vs The Hon. Attorney General & Another Petition No. E021 of 2022** where the petitioner was awarded Kshs. 5 million as damages for violation of his constitutional rights and Kshs. 3 million for punitive damages. The petitioner hereby proposes damages in the sum of Kshs. 15 million for compensation for violations and contravention of his fundamental rights and freedoms; Kshs. 6,591,520/- as a refund of medical costs consisting of Kshs. 416,000/- as medical consultations, Kshs. 5,010,720/- as medical expenses on drugs and Kshs. 1,164,800/- as medical expenses on tests. 5. The Respondent’s filed submissions in the trial court dated 15th October 2018 but did not file any supplementary submissions. In the said submissions, the respondents urged the court to be guided by the principles considered by the court in the case of **Constitutional Petition No. 128 of 2006, Lt. Col. Peter Ngari Kagume & Others vs Attorney General** that: 6. **If there is any other remedy in addition to damages, that other remedy should usually be granted initially and damages should only be granted in addition if necessary to afford just satisfaction.** 7. **The court should not award exemplary or aggravated damages.** 8. **An award should be of no greater sun than that necessary to achieve just satisfaction.** 9. **The quantum of award should be moderate and normally on the lower side by comparison to tortuous awards.** **Analysis and Determination** 1. The only issue for determination is the quantum of damages the Court should grant to the Petitioner. 2. It is now trite law that the principles for award of damages in constitutional claims does not operate on the same principles as award of damages in tortious liability claims or the common law principles. Under the tort law, proof of actual loss and damage is a condition precedent without which no damages are awardable but this is not so for constitutional claims as long as a violation has been proved. Further, and most significant is the fact that constitutional reliefs, including damages are not intended at punishing the violator but to vindicate the violation of a right and uphold the dignity of the victim hence the reason why the damages, if where awarded, are only stated to be vindicatory or compensatory, they are not supposed to be punitive. These guiding principles were aptly articulated by the Supreme Court in the case of **Charles Muturi Macharia & 6 Others v Standard-Group & 4 Others (SC Petition No.13 (E015) of 2022)** as follows: ***“[91] By the provisions of Articles 22 and 23 of the Constitution, the High Court has the power and authority to enforce and uphold the Bill of Rights in claims of infringements. In proceedings brought by any person claiming that a right or fundamental freedom has been denied, violated or infringed, or is threatened, the court may, under Article 23 grant appropriate relief, including:*** ***“(a) a declaration of rights*** ***(b) an injunction*** ***(c) a conservatory order*** ***(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under article 24.*** ***(e) an order for compensation*** ***(f) an order of judicial review…*** ***…under common law principles, it is settled that an injured party is entitled to damages for the loss and injury suffered under private law causes of action, like in tortious claims. In situations like those, compensation for personal loss depends on proof of such loss or damage. However, arising out of the violation of constitutional rights and fundamental freedoms of an individual under public law, the nature of the damages awardable are broadly compensatory or vindicatory, as should be apparent from the list of examples of reliefs in Article 23. While it is not necessary to prove loss or damage in cases of constitutional rights violations, the court may consider the extent, nature, gravity and immensity of harm suffered by the aggrieved party when determining the appropriate remedy. In deserving cases, the redress may be in the form of an award of damages to compensate the victim. In some cases, a suitable declaration, an injunctive or conservatory order, or an order of judicial review will suffice to vindicate the right.*** ***[95] In assessing the appropriate sum to be awarded as compensation, the court must feel satisfied that the sum will afford the victim adequate redress to vindicate the victim’s constitutional right. Assessment of the right quantum for compensation will take into account all the relevant facts and circumstances of the violation and the victim in the particular case, bearing in mind any aggravating features. We stress that the purpose of constitutional relief of an award of compensation is not necessarily intended to punish the violator, but only to vindicate the right of the victim.*** 1. ***….*** ***Therefore, once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation. For these reasons, it can be said that the approach in awarding damages or compensation in constitutional rights violation cases is different from that in tortious claims….”*** 1. Furthermore, the Court of Appeal in **Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others [2021] KECA 328 (KLR)** held as follows: ***“15. The relevant principles applicable to award of damages for constitutional violations under the Constitution were also explained by the Privy Council in the case of Siewchand Ramanoop vs The AG of T&T, PC Appeal No 13 of 2004. It was held by Lord Nicholls at Paragraphs 18 & 19 that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense as follows:.*** ***“When exercising this constitutional jurisdiction, the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide because the award of compensation under section 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law…”*** 1. In **Gitobu Imanyara & 2 Others vs Attorney General Civil Appeal No. 98 of 2014 [2016] eKLR** the Court of Appeal held:- **It seems to us that the award of damages for constitutional violations of an individual’s right by state or the government are 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 is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In other words, an award of reasonable damages may be called for in addition to the declaration….”** 1. In the case of **Koigi Wamwere vs Attorney General [2015] eKLR**, the Court of Appeal found that the sum of Kshs. 2.5 million awarded by the High Court to be patently inadequate and enhanced the award to a global sum of Kshs. 12 million. The violations in the said case involved extended periods of detention without trial, torture at Nyayo House for 11 days and false arraignment for fake robbery with violence charges. 2. In **Jennifer Muthoni Njoroge & Others vs the Attorney General [2012] eKLR** four of the petitioners were each awarded general damages for amounts ranging between Kshs. 1.5 million and Kshs. 2 million for torture, cruel and degrading treatment and unlawful detention for periods ranging between 7 days and 14 days. 3. In **Benedict Munene Kariuki & 13 Others vs the Attorney General High Court Petition No. 722 of 2009**, the plaintiffs were each similarly awarded general damages of Kshs. 2 million for similar constitutional violations of torture, cruel and degrading treatment and unlawful detention ranging from periods of 7 days to 72 days. 4. In **Ngethe wa Murimi alias Ngethe Kuria Murimi vs the Attorney General [2017] KEHC 8386 (KLR)** the petitioner was detained unlawfully at Nakuru Central Police Station for ten days and at the Nyayo House Torture Chambers for eight days, where he was tortured. The court awarded him general damages of Kshs. 1.5 million as compensation. 5. In the instant case, I have considered the uncontroverted fact that the Petitioner was arrested on 10/5/1991 in Nakuru and taken to Nairobi Traffic Headquarters, then Kilimani Police Station where he was detained for four hours. He was subsequently held at Nyayo House in a cold cell for 13 days without trial. During the time, he was subjected to various intermittent chilling interrogations in presence of about 20 men who would abuse him and threaten him with death. 6. Taking into account the nature of the constitutional violations which included not only physical but also mental and psychological torture he underwent, breach of his right to a fair trial, freedom and security of the person, and further considering the duration of time he was subjected to this torturous experience and taking into account the awards in comparable precedents which I have highlighted in the foregoing, it is my considered view that that an award of **Kenya Shillings Three Million, Five hundred Thousand Only (Kshs. 3,500,000/-)** is sufficient compensation to vindicate the rights of the Petitioner. 7. The petitioner in his petition has further sought for Kshs. 6,591,520/- comprising of medical consultation fees of Kshs. 46,000/- medical drugs at Kshs. 5,010,720/- and medical tests at Kshs. 1.164,800/-. On perusal of the petition, the petitioner has not annexed any receipts or affidavit by a doctor to support his claim for Kshs. 6,591,520/-. The said sum has not been specifically pleaded in the petition nor has it been proved. Special damages must be specifically pleaded and proved. This claim is therefore rejected. 8. The Petitioner further submitted that the Court should award exemplary and punitive damages. This Court is not persuaded that going the punitive way the serves the object of granting constitutional remedies. A constitutional relief serves the higher public goal of restoring the rule of law and constitutionalism, it is not merely a transactional event. To reiterate the holding of the Court of Appeal in **Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)** on the nature of a Constitutional relief: ***“…the South African Case of Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 where the Constitutional Court of South Africa held that:*** ***“...The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.*** ***“…The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. 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.”*** 1. In **Ken Odondi & 2 Others vs James Okoth Omburah t/a Okoth Omburah & Company Advocates [2013] eKLR,** the Court of Appeal explained that exemplary damages are over and above the required compensation and are meant purely to punish. It held thus: **“Exemplary damages on the other hand had gone beyond compensation and are meant to punish the defendant. Aggravated damages will be ordered against a defendant who acts out of improper motive e.g where it is attracted by malice; insistence on a flurry defence of justification or failure to apologize**.” 1. It is thus the considered view of this Court that the award of exemplary or punitive damages is inconsistent with the vindicatory or compensatory principle that governs the assessment of damages in constitutional claims. In granting constitutional reliefs, the Court seeks to affirm the supremacy of the Constitution and uphold the fundamental rights and freedoms protected in the constitution by thus ensuring harm suffered is sufficiently redressed. Punishment is never the objective behind granting constitutional reliefs. That may be available in suits predicated on the common law or criminal law. 2. The claim for exemplary or punitive damages is thus misplaced. It is thus rejected. 3. In conclusion, the Court reiterates its award of **Kenya shillings Three Million Five Hundred Thousand Shillings only (Kshs. 3,500,000**/-) together with costs of this Petition. ***Dated, signed and delivered virtually at Nairobi this 11th day of June, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**