[2022] KEHC 475 (KLR)

Muhayimana & another v Mwachugha & 2 others (Petition E002 of 2022) [2022] KEHC 475 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 475 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition E002 of 2022

JM Mativo, J

May 6, 2022

Between

Jean Bosco Muhayimana

1st Petitioner

Stacom Company Limited

2nd Petitioner

and

Jimmy Irenge Aka Jimmy Mwachugha

1st Respondent

Inspector General of Police

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Judgment

1. The Petitioners’ grievance as I glean it from his amended Petition dated 18th February 2022 is that in May 2021, the 1st Respondent contracted him to transport a consignment of edible and perishable foods from Mombasa to the Democratic Republic of Congo at an agreed fee of US $ 6,400 payable as follows- 70% upfront and 30% upon delivery. They aver that the 1st Respondent was to bear delay charges not attributable to the Petitioners at an agreed daily rate of US$ 100 plus diesel costs for running a generator for the cooler to preserve the consignment.

2. They contend that even though the contract was oral, it was supplemented by: - written correspondence between the 1st Petitioner and the 1st Respondent; part payment of the agreed charges and by the Petitioners’ due performance of their part of the contract. It is common ground that the container was loaded abode the Petitioners’ motor vehicle registration number RAC 603 Q/RL 1055 driven by the 1st Respondent. It is admitted that it was delivered to agreed destination in Congo on 22nd June 2021. The contestation is that the Petitioners aver that they raised an invoice of US $ 11,040 comprising of the agreed transport charges of US$6,400, delay expenses for 15 days pre-loading in Mombasa, 4 days at Rusinzi Border and 6 days at Entorpe de Bukavu totalling to US $ 2,500 as well as expenses for 570 litres of diesel and invoiced the 1st Respondent accounting for the already paid US$ 4,800 and fuel charges, leaving an unpaid sum of US $ 4,648 for transporting the empty container back to Kenya.

3. They aver that the 1st Respondent failed to pay causing them to incur expenses ferrying the container back to Rwanda for safe storage pending payment of the outstanding charges. They contend that in late August 2021 after a long silence, the 1st Respondent paid US $1,600 and requested the Petitioners to transport the container back to Kenya promising to pay the balance but he did not honour his promise, so the Petitioners returned the container to Rwanda at a cost of US $ 2,250 and its accruing daily storage charges of Francs 3000.

4. The Petitioners state that the 1st Respondent declined to respond to their communication or pay the balance but on 20th December 202, he alerted the 1st Petitioner that he had deposited US $ 2,000 in his bank account and requested the Petitioners to deliver the container to him in Mombasa and he undertook to offset the balance of US$ 1,000 within undisclosed timeliness. They aver that the balance as at then stood at US $ 1,048 excluding the expenses incurred in August 2021 delivering the container to Nairobi.

5. They aver that on 18th January 2022 while the 1stPetitioner had lawfully parked his motor vehicle registration number RAC 603Q/RL 1055 at the premises of Hashi Energy Limited at Mombasa waiting to execute a transport agreement with the said company to transport a consignment to the Republic of Rwanda, the said motor vehicle was unlawfully seized by two persons who identified themselves as police officers from Changamwe Police Station.

6. They aver that they were about to secure a year-long contract worth US$ 3,200 to transport consignments to neighbouring countries when police officers commandeered the 1stPetitioner to drive the said motor vehicle to Changamwe police Station where they detained it in breach of the Petitioners’ right to property. They aver that at the station they were informed that the vehicle was seized following a complaint by the 1st Respondent over the unreturned container despite the non-payment as aforesaid. They state that the seizure violates their rights under Articles 40 and 47 (1) of the Constitution and sections 24 (d) & (e) and 57 (2) of the National Police Service Act.1 They aver that the police are not debt collectors and they are not authorized by law to seize and detain property without cause, hence the police acted arbitrarily and without jurisdiction.1Act No. 11A of 2011.

7. The Petitioners aver that the 1st Respondent who was already in breach of the agreement aggravated the breach by instigating the police to arbitrarily seize the vehicle as they awaited to execute a contract, so, the Respondents are liable to pay damages for the aforesaid violations. They aver that the Police officers demand that the Plaintiffs return the said container is irrational, unreasonable and aimed at coercing them to abandon their contractual rights.

8. Further, they aver that the DCI Officers, Changamwe Police Station unconditionally released their aforesaid motor vehicle on 2nd February 2022, after 15 days and after its release, the vehicle ferried a consignment to Rwanda only for the 1st Petitioner to be arrested at Malaba Border Point on 5th February 2022 and the vehicle was detained. Further, the 1stPetitioner was transported back to Mombasa but he was released on 8th February 2022 on police compulsion. The 1st Petitioner avers that he was held for over 24 hours, and he was subjected to inhumane treatment including sleeping on cold floor, deprivation of food and basic necessities.

9. They aver that the seizure of the motor vehicle and the 1st Petitioners re-arrest were intended to apply undue pressure upon them to abandon their claims. Further, the 1st Petitioner avers that his arrest was arbitrary, in bad faith and in violation of his rights not to be detained without trial, right against torture and the right not to be treated in a cruel, inhuman and degrading treatment, freedom of movement and a breach of his rights under Articles 47, 49 and 50.

10. The Petitioners blames the Hon. Attorney General for not advising the Inspector General of Police pursuant to Article 156(4) (a) of the Constitution to perform their functions under Article 244 (c) of the Constitution. They accuse the Director of Public Prosecutions for failing to exercise his powers under Article 157(4) and 245 (5) of the Constitution and sections 4,5(2) (a) (d), 27 & 32 of the Office of the Director of Public Prosecutions Act2 and for failing to direct the Inspector General of police to investigate the allegation of criminal conduct again the police contrary to public interest.2Act No. 2 of 2013.

11. The Petitioners aver that the Respondents violated their constitutional right as particularized at paragraph 38 (i)-(ix) of the Petition and claim as against the 1stRespondent a total of US$ 8,648 as more particularized in paragraph 38 (a) to (e) at page 21 of the amended Petition plus damages for breach of contract. As against all the Respondents jointly and severally they claim compensation for loss of profits, general damages for malicious report, unlawful seizure and detention of the vehicle, compensation for lost business opportunities, damages for arrest and detention and declarations as to violation of their rights as particularized in the Petition.

12. The Petitioner urges this court to find that their constitutional rights as pleaded in the Petition have been violated and issue declarations to that effect. They also pray for a declaration that the invocation of police powers in a civil dispute to seize the vehicle and arrest and detain the 1st Petitioner is inter alia arbitrary, illegal, oppressive and a violation of their constitutional rights.

13. Additionally, they pray for an order that the Police have no justifiable or lawful authority to seize/detain the said vehicle and an order directed at the Inspector General of Police and the officers serving under him to desist from overstepping their lawful mandate and to discharge the Petitioner from further compulsion to appear before the police and to prohibit the police from arresting or detaining the 1st Petitioner.

14. Further, the Petitioners pray for compensation by way of special damages as against the 1st Respondent as pleaded at paragraph 38 (a) to (d) of the Petition and an order of compensation by way of General damages for breach of contract as against the 1st Respondent. Further, the Petitioners pray for an order of compensation by way of general and punitive damages for unlawful arrest and arbitrary detention of the 1st Petitioner. Also, the Petitioners pray for costs of the Petition, interests on money claimed from the date of filing the Petition for the liquidated amounts and from the date of judgment for the rest including costs until payment in full. Lastly, the Petitioners pray for any other relief this court may grant.

15. The 1st Respondent did not file any response to the Petition nor did he participate in the proceedings. (Even though the Replying affidavit of PC Iddih Musa Juma is entitled 1st and 2nd Respondents replying affidavit, evidently this was a mistake because the contents show that it relates to the 2nd Respondent only).

16. PC Iddih Musa Juma, attached to the Directorate of Criminal Investigations Changamwe Sub-County, swore the Replying affidavit dated 14th February 2022. The substance of the affidavit is that he was investigating a case of stealing contrary to section 268 of the Penal Code3 as read with section 275 (1) following reported at the station on 18th January 2022 by a one Jimmy Irenge (OB No. 35/18/1/2022) alleging that the Petitioners failed to return his container, though he was fully paid. He averred that after tracking the Petitioners’ motor vehicle, he requested the 1stPetitioner to drive it to Changamwe Police Station.3Cap 63, Laws of Kenya.

17. He deposed that the 1st Petitioner admitted transporting the consignment to Bakavu, Congo and that he had not returned the container, but he requested to be allowed to go back to his country to bring back the container instead of being arrested and being arraigned in court and as a show of good faith he asked to be allowed to leave the said motor vehicle at the police station until he returns with the container, so, it was detained at Changamwe Police Station vide OB No 36/18/01/2022 pending production of the container.

18. He averred that the 1st Petitioner requested for one week to produce the container and he was issued with summons compelling him to report to the station at the end of one week, but he never came back, instead, on or about 26thJanuary 2000, they received a demand letter from his advocate claiming that the vehicle was being held illegally.

19. Further, a telephone call was made to the 1st Petitioner informing him to collect the vehicle and he authorized Athman Msafari to collect it. Further, on 6th February 2022 he was informed that Jean Bosco Muhayimana was at Malaba border crossing into Uganda and he requested that he be apprehended for failing to produce the container and he was apprehended and booked vide OB No. 34/06/02/2022 and officers from Changamwe Police Station picked him on 7th February 2022 and travelled by road to Nairobi but they missed a flight to Mombasa, so, they re-schedule their flight to Mombasa to 8th February 2022 at 4pm and arrived at changamwe at 5. 30pm where he recorded the 1st Petitioner’s statement but he declined to sign it requesting that it be read to him by a Rwandese translator.

20. He averred that because it was late in the evening, he could not get a Rwandese translator so he was bonded to appear on 9th February 2022, but on the said date no translator was available, so his bond was extended to 14th February 2022. He averred that on 10th February 2022, the investigation file was forwarded to the 3rd Respondent for advice and that this Petition is premature.

21. The 3rd Respondent (the DPP) filed grounds of opposition dated 10th February 2022 stating inter alia that the Petition is misconceived; it does not raise constitutional issues; it is premised on defective appreciation of Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act; that the 2ndRespondent has wrongfully been joined in this case. Also, the Petition violates Rules 10 (2) (c) (d) & (e) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice Rules, 2013 and the principles laid down in Anarita Karimi Njeru v Republic. Additionally, under Article 157(11) of the Constitution, the DPP is subject only to the Constitution and the law nor has it been demonstrated that the DPP acted in bad faith or un procedurally. Lastly, that this Petition is a gross abuse of court process.

22. The 1stPetitioner filled the supplementary affidavit dated 15th February 2022 essentially replicating the Petitioners’ core grievance as captured in the earlier affidavit and disputing the Respondents’ averments. He reiterated that what is in issue is a commercial dispute between the parties, and, that the police have delved into a civil dispute and they have acted unlawfully.

23. The Petitioners submitted that they are aggrieved by the failure by the 2nd and 3rd Respondents to exercise state authority within their constitutional confines under Articles 156(4) (6) & (7), 157 (4) (9) & (11), 244 (c), 245 (2) (a), (b) & (5) of the Constitution. Citing Article 24 (1) & (3) of the Constitution, the Petitioners submitted that fundamental rights and freedoms cannot be limited except as therein provided. They also cited Article 25(a) & (b) of the Constitution and submitted that the right for freedom from torture, cruel and inhuman or degrading treatment or punishment and freedom from slavery cannot be limited. They argued that the Petitioners’ rights under Articles 28, 29, 30, 39, 40, 47, 49 & 50 (1) have been violated.

24. The Petitioners submitted that the above violations warrant the reliefs sought. They relied on Agnes Ngenesi Kinyua ak Agnes Kinywa v Director of Public Prosecutions & another4 in which the court faulted the police for illegally detaining a vehicle and ordered its release. Additionally, they submitted that they have provided sufficient evidence for the court to award damages. They cited Moses Kipkoech Rotich v Kenya National Highways Authority & 7 others5 in which the court awarded Kshs. 3,000,000/= general damages for unlawful deprivation of the right to use and enjoyment of property. They argued that they demonstrated that their vehicle which was used for commercial purposes was detained for 15 and 4 days respectively, and, that they have established that he had secured a contract for US $ 6,400 plus delay and diesel charges. They urged the court to quantify US $ 3,200. Also, they argued that they had secured a contract a draft of which was exhibited. They submitted that equity will not allow a wrong to be suffered without a remedy and urged the court to award general damages for malicious report and unlawful seizure and arbitrary detention of the motor vehicle computed for 19 days and loss of profits for the contract lost. The Petitioners urged the court to award Kshs. 8,000,0000/=for the malicious reporting, unlawful seizure and arbitrary detention of the vehicle occasioning loss of business.4[2019] e KLR.5[2018] e KLR.

25. They implored the court to note that the 1st Petitioner was arrested on a Sunday night and the police knew that courts are not open on a Sunday and that he was held for more than 24 hours in inhumane conditions and released on compulsion. They argued that the Police failed to record his statement or investigate the competing complaints. They faulted the police for not exercising their power under section 36 of the Criminal Procedure Code6 and find that there was insufficient evidence.6Cap 75, Laws of Kenya.

26. Also, the Petitioners submitted that the Inspector General of Police, the Attorney General and the Director of Public Prosecutions have not discharged their mandates by advising and directing the police to act within the law. They submitted that Article 73 (a) of the Constitution provides that authority assigned to a state officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the Constitution. The Petitioners cited Mohamed Feisal & 19 others v Henry Kandie, Chief Inspector of Police, Ocs, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party)7 in support of the proposition that detention of an individual is justified only as a last resort and awarded the Petitioner compensatory and aggravated damages of Kshs. 3,000,000/=. They also cited MWK & Another v Attorney General & 3 others8 in which the court awarded Kshs. 4,000,000/= for breach of rights.7[2018] e KLR.8[2017} e KLR.

27. The Petitioners submitted that the 1stPetitioner was held under harsh conditions with no mattresses, food and he was not allowed to shower or change his clothing from 5th February 2022 to 8th February 2022 and he was restricted from leaving the country. They urged the court to award damages of Kshs. 6,000,000/=. Lastly, they argued that the container is held at a storage facility at Rwanda where it is accruing charges and argued that justice will be met if the 1st Respondent is compelled to pay the said charges.

28. The 2ndRespondent submitted that the police have a duty to investigate every complaint once it is received at the police station and cited sections 24 and 51 of the National Police Service Act and argued that failure to investigate is a dereliction from duty. The 2nd Respondent cited Republic v Commissioner of Police & another ex parte Michael Monari & another9in support of the proposition that the police have a duty to investigate alleged crime once a complaint is made, and, that there is no proof that the police exceeded their power. He submitted that the delay in availing the 1st Petitioner at Changamwe Police Station after he was arrested at Malava has been explained.9[2012} e KLR.

29. The 2nd Respondent dismissed the submission that he ought to have directed the Inspector General of Police arguing that it is contrary to Article 245(4) of the Constitution. He submitted that the Petitioner failed to prove violation of rights and the loss claimed. Further, he submitted that special damages must be strictly proved and citedHahn v Singh10and Total (Kenya) Limited v Janevams Ltd. Lastly, he submitted that the Petition is pre-mature since investigations are stilling ongoing.10[1985] KLR 716 at 717 and 721.

30. The DPP cited section 107 (1) of the Evidence Act11 and submitted that the Petitioners have not discharged the burden of prove to demonstrate breach of rights. The DPP cited Leonard Otieno v Airtel Kenya Ltd12 and Communications Commission of Kenya v Royal Media Services Ltd & 5 others in support of the holding that a party invoking Article 22 (1) of the Constitution must show that the rights have been violated. Also, the DPP submitted that the Petition does not meet the threshold of a Constitutional Petition. (Citing David Mathu Kimingi13). The DPP submitted that the Petitioner failed to demonstrate how the DPP violated his constitutional rights. Additionally, the DPP argued that under sections 24 and 35 of the National Police Service Act the Police are mandated to investigate crime. Also, the DPP cited Kipoki Oreu Tasur v Inspector General of Police & others14in support of the proposition that it is imperative to allow the police to function.11Cap 80, Laws of Kenya.12[2018] e KLR.13[2021] e KLR.14[2014] e KLR.

31. Additionally, the DPP submitted that the Petitioner is not entitled to the reliefs sought and cited Mvumvu v Minister for Transport15which held that in determining a suitable remedy, the courts are obliged to take into account not only the interests of the parties but also the interests of good governance. Lastly, the DPP submitted that it ought not to be a party in these proceedings and that loss of profits cannot be claimed as constitutional damages.15[2011] ZACC 1.

32. For starters, I find it useful to address a pertinent issue, which is whether the Petitioners’ Petition discloses a civil dispute as opposed to constitutional Petition. Notably, the Petitioners at prayer (f) of the amended Petition pray for special damages as pleaded at paragraph 38 (a) to (d) of the Petition. At prayer (g), the Petitioners pray for general damages for breach of contract as pleaded at paragraph 38 (e) of the Petition. Also, the Petitioners pray for loss of profits for malicious report, unlawful seizure and detention of the motor vehicle.

33. Before addressing the above prayers, it is important to recall that in principle, it appears that a court is bound to entertain proceedings that fall within its jurisdiction. A court has no inherent jurisdiction to decline to entertain a matter within its jurisdiction. Jurisdiction is determined on the basis of pleadings and not the substantive merits of the case, a proposition best captured by the South African Constitutional Court16in the following words: -16In the matter between Vuyile Jackson Gcaba v Minister for Safety and Security First & others Case CCT 64/08 [2009] ZACC 26“Jurisdiction is determined on the basis of the pleadings,17… and not the substantive merits of the case… In the event of the Court’s jurisdiction being challenged at the outset (in limine), the applicant’s pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the court’s competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion, but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant’s claim is, it is not for the court to say that the facts asserted by the applicant would also sustain another claim, cognizable only in another court. If however the pleadings, properly interpreted, establish that the applicant is asserting a claim …, one that is to be determined exclusively by……{another court}, the High Court would lack jurisdiction…"17Fraser v ABSA Bank Ltd [2006] ZACC 24; 2007 (3) BCLR 219 (CC); 2007 (3) SA 484 (CC) at para 40.

34. The argument in support of the prayer for special damages is that the vehicle was used for commercial purposes, and that at the time it was impounded, the Petitioners had secured a one-year contract and as a result of the detention, they suffered loss. Closely tied to this issue is the claim for un paid money for services rendered and costs incurred. The claim for general damages is premised on alleged breach of contract. Additionally, the claim for loss of profits flows from the alleged breach of contract and the alleged impounding of the vehicle at a time when the Petitioners had secured a one-year contract.

35. I will first address the claim for breach of contract and loss of profits and explain why it was in appropriate for the Petitioner to bring such claims by way of a constitutional Petition as opposed to a civil suit. In Hyrdo Water Well (K) Limited v Nelson Mukara Sechere, Henry Nandwa Namayi and Gilbert Muthengi Wambua (Sued in their representative capacity as the officers of Chae Kenya Society18 I had the benefit of addressing claims for profits and breach of contract and the burden of prove required. Inevitably, I will profitably rehash much of what I said in the said case because of its relevance to the issues at hand.18Civil Suit No. E212 of 2019.

36. The law of contract gives effect to consensual agreements entered into by particular individuals in their own interests. Remedies granted by the courts are designed to give effect to what was voluntarily undertaken by the parties. Damages in contract are therefore intended to place the claimant in the same position as he would have been in if the contract had been performed. This position was appreciated as early as in 1848 in Robinson v Harman19 in which Parke B said “the rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.”19{1848} 1 Exch 850.

37. The above statement of the law has been endorsed in numerous judicial pronouncements in literally all jurisdictions of the world to the extent it can safely be said that it has acquired the singular distinction of the force of law. For instance, in 2015, it was endorsed in Bunge SA v Nidera NV (formerly Nidera Handelscompagnie BV)20 where it was described as the “fundamental principle of the common law of damages.” In Wertheim v Chicoutimi Pulp Co,21 it was described as the “ruling principle.” In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd (No 2)22 it was described as the “fundamental basis for assessing damages.”20{2015} UKSC 43; [2015] Bus LR 987, para 14. 21{1911} AC 301, 307. 22{1912} AC 673 at 689.

38. The principal remedy under common law for breach of contract is an award of damages, with the purpose of damages being to compensate the injured party for the loss suffered as a result of the breach, rather than (except for very limited circumstances) to punish the breaching party. This general rule, which can be traced back to Robinson v Harman(supra) is to place the claimant in the same position as if the contract had been performed, with the guiding principle being that of restitution. The compensatory nature of damages for breach of contract, and the nature of the loss for which they are designed to compensate, were explained by Lord Diplock in Photo Production Ltd v Securicor Transport Ltd:-2323{1980} AC 827, 848- 849. “The contract, however, is just as much the source of secondary obligations as it is of primary obligations ... Every failure to perform a primary obligation is a breach of contract. The secondary obligation on the part of the contract breaker to which it gives rise by implication of the common law is to pay monetary compensation to the other party for the loss sustained by him in consequence of the breach ...” (p 849)

39. As his Lordship stated in the above case, a contract is the source of primary legal obligations upon each party to it to procure that whatever he has promised will be done is done. Leaving aside the comparatively rare cases in which the court is able to enforce a primary obligation by decreeing specific performance of it, breaches of primary obligations give rise to “substituted or secondary obligations” on the part of the party in default. Those secondary obligations of the contract breaker arise by implication of law.

40. To successfully claim damages, a plaintiff must show that: (a) a contract exists or existed; (b) the contract was breached by the defendant; and (c) the plaintiff suffered damage (loss) as a result of the defendant's breach. The plaintiff ‘is not required to establish the causal link (between breaches of an agreement and damages) with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what could be expected to have occurred in the ordinary course of human affairs, rather than an exercise in metaphysics.’24 A plaintiff who at the end of a trial can show no more than a probability that he would not have suffered the loss if the contract had been properly performed, will succeed unless the defendant can discharge the onus of proving that there was no such probability.24Minister of Safety and Security v Van Duivenboden2002 (6) SA 431 (SCA) 449.

41. The test to be applied is whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. This implies that the plaintiff has to make out a prima facie case, in the sense that there is evidence relating to all the elements of the claim. The court must consider whether there is evidence upon which a reasonable man might find for the plaintiff. The court’s function is confined to enforcing either the primary obligation to perform, or the contract breaker’s secondary obligation to pay damages as a substitute for performance. The foregoing being the position, then one wonders how the Petitioners expected to successfully mount a claim for breach of contract and recovery of damages in a constitutional Petition prosecuted by affidavit evidence as opposed to a civil suit where they can do so by way of oral evidence.

42. The objective of compensating the claimant for the loss sustained as a result of non-performance makes it necessary to quantify the loss which he sustained as accurately as the circumstances permit. What is crucial is first to identify the loss: the difference between the claimant’s actual situation and the situation in which he would have been if the primary contractual obligation had been performed. The foregoing is a matter of evidence. Once the loss has been identified and proved by way of evidence, the court then has to quantify it in monetary terms. The question here is whether the Petitioner attained this evidential threshold to establish damages for breach of contract.

43. As for the claim for loss of profits, the American case of Griffin v Colver25 in which the New York Court of Appeals set the tone for the more modern rule of lost profits damages is apposite. It stated: -25Griffin v Colver, 16 N.Y. 489, 491 [1858].“It is a well-established rule of the common law that the damages to be recovered for a breach of contract must be shown with certainty, and not left to speculation or conjecture; and it is under this rule that profits are excluded from the estimate of damages in such cases, and not because there is anything in their nature which should per se prevent their allowance. Profits which would certainly have been realized but for the defendant’s default are recoverable; those which are speculative or contingent are not. Griffin thus concluded that lost profits are recoverable in contract cases, but only if the aggrieved party proved them with certainty. Griffin quickly became the “leading American case on recovery of lost profits.”

44. Since the above decision, (Griffin), it has been relatively clear that lost profits are available where the parties’ contract clearly anticipated them and the party seeking them could prove the amount with relative certainty. That degree of certainty can best be arrived at after oral evidence as opposed to averments in a Petition. Lost-profit damages are now available in a variety of civil contexts—tort actions (both personal and business), breach of contract actions, antitrust suits, and claims for trademark and patent infringement.26 Nonetheless, courts continue to face the often-difficult questions of how to assess whether the parties contemplated lost-profit damages, whether a party actually suffered them, and if so, how to measure those lost profits.2726Erwin v. Mendenhall, 433 P.3d 1090, 1095 (Alaska 2018).27Todd R. Smyth,Recovery of Anticipated Lost Profits of New Business: Post-1965 cases, 55 A.L.R.4th 507 (1987).

45. Perhaps the most important consideration in any lost-profits case is how much and what type of evidence a party needs to prove the alleged lost profits. To understand the necessary quantum of evidence, it is helpful first to understand the definition of lost-profits damages. Typically, lost-profits damages refer to the loss of net profits, rather than gross profits or revenue.28 “Lost profits are damages for the loss of net income to a business and, broadly speaking, reflect income from lost business activity, less expenses that would have been attributable to that activity.”29 However, courts may award gross profits when operating expenses are fixed.30 After calculating net lost profits, the plaintiff (typically, but not always) must show:- (a) that the conduct upon which the claim is based caused the lost profit damages; (b) that the parties contemplated the possibility of lost profit damages or that the lost profit damages were a foreseeable consequence of the conduct; and (c) that the lost profit damages are capable of proof with reasonable certainty.31 These three elements of the claim are commonly known as proximate cause, foreseeability, and reasonable certainty. Again, I fail to see how the Petitioners expected to surmount the above three elements by simply enumerating their claim and leave it to the court to assess instead of tendering evidence to substantiate the above elements.28Erwin v. Mendenhall, 433 P.3d 1090, 1095 (Alaska 2018).29Ginn v. Stonecreek Dental Care, 30 N.E.3d 1034, 1043 (Ohio Ct. App. 2015).3022 Am. Jur. 2d Damages § 57 (2019).31Jonathan Dunitz & Nancy Fannon,The Comprehensive Guide to Economic Damages(5th ed, 2018); Bona Fide Conglomerate, Inc. v. Source America, 2017 U.S. Dist. LEXIS 116329, at *13 (S.D. Cal. July 24, 2017).

46. Except where the defendant does not dispute liability, this first element of a claim for lost profits (proximate cause) typically requires an in-depth analysis of both the applicable law and the facts. Specifically, the plaintiff must show, by a preponderance of the evidence, that the plaintiff’s alleged loss was the proximate result of the breach, the so-called “but-for test” (i.e., but for the breaching conduct, the plaintiff would have earned profit). A “proximate” cause is a cause that (a) produces a result in a natural and continuous sequence and (b) without which the result would not have occurred.32 For example, in National Controls Corp. v National Semiconductor Corp.,33 the court considered in detail the type and quantum of evidence needed to demonstrate proximate causation for purposes of lost-profits damages. The court described the required proof as follows: -32Racicky v. Farmland Indus., Inc., 328 F.3d 389, 396 (8th Cir. 2003).33Nat’l Controls Corp. v. Nat’l Semiconductor Corp., 833 F.2d 491, 496 (3d Cir. 1987).“The damages sought must be “a proximate consequence of the breach, not merely remote or possible . . . The element of causation defines the range of socially and economically desirable recovery and requires not only ‘but-for’ causation in fact but also that the conduct be a substantial factor in bringing about the harm. Where the losses cannot be allocated between those caused by the defendant’s breach and those not, an entire claim may be rejected. The Plaintiff thus must prove that any lost profits were proximately caused by defendant’s breach, and not through some other cause. In essence, the proximate causation requirement demands that the plaintiff prove that the defendant’s breach was a substantial factor in causing some harm.”

47. The second element of a lost-profits claim is foreseeability, which is essentially a determination if the parties contemplated such damages or should have reasonably foreseen that they would arise.34 The parties’ relationship is typically governed by a contract, usually with a specific term. The language in the contract usually determines whether lost profits were foreseeable.34HSS Enters., LLC v. Amco Ins. Co., 2008 WL 1787127, at *13 (W.D. Wash. Apr. 16, 2008).

48. Determining whether contracting parties contemplated lost-profits damages typically involves two questions. First, does the contract allow lost profits at all? In a well-drafted contract, this first issue may be determinative, and the contract may expressly exclude any possibility of lost profits. Absent controlling contractual terms, lost profits are legally foreseeable if, at the time of contracting, (a) the loss was natural and inevitable upon the breach so that the defaulting party may be presumed from all the circumstances to have foreseen it; or (b) if the breach resulted in lost profits because of a special circumstance, a circumstance that must have been known to the defaulting party at the time of the contracting.35 Importantly, the rule requires only a reasonable reason to foresee, not actual foresight. To meet this standard, courts require significant contractual evidence of the reasonable contemplation of lost profits.3635Precision Pine & Timber, Inc. v. United States, 63 Fed. Cl. 122, 130 (2004); Restatement (Second) of Contracts § 351(2)36Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395, 405 (1993).

49. If the plaintiff is able to demonstrate that lost profits are actually available under the contract, it will typically then have to establish the applicable duration for which lost profits are recoverable. Parties often refer to this period for calculating lost profits as the “damage period” or the “loss period.” Calculating the loss period is typically fact-specific. Contract terms, statutory requirements, prior custom and practice, and industry standards can, and typically will, influence the extent of the loss period. The loss period may be relatively short and, in the past, or may be ongoing into the future, particularly when a franchisee continues to operate its business while pursuing litigation.

50. The third element the plaintiff must prove is that lost profit damages are “reasonably certain and not speculative.”37 Generally, the certainty of damages is sufficient if the evidence enables the court to make a fair and reasonable approximation of damages.38 The above cited cases are graphically clear on the evidential burden placed upon a party claiming loss of profits and breach of contract.37Rubin Res., Inc. v. Morris, 237 W. Va. 370, 379 (2016); Stern Oil Co. v. Brown, 908 N.W.2d 144, 151 (S.D. 2018).38Precision Pine & Timber, Inc. v. United States, 63 Fed. Cl. 122, 131 (2004).

51. The Petitioners also pray for special damages. It is trite law that special damages must not only be specifically pleaded, but must also be strictly proved with as much particularity as circumstances permit. The court of Appeal in Richard Okuku Oloo v South Nyanza Sugar Co. Ltd 39 observed that: -39{2013} e KLR.“…a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of….”

52. Our decisional law is quite clear that one consequence of this general principle is that a party claiming special damages must demonstrate that they actually made the payments or suffered the specific injury before compensation is permitted. A natural corollary of this has been that the courts have insisted that a party must present actual receipts of payments made to substantiate loss or economic injury or produce documents to support his claim. (See See Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited;40 Zacharia Waweru Thumbi v Samuel Njoroge Thuku.41 As authorities suggest, a claim for special damages must not only be pleaded, it must be strictly proved. It cannot suffice to enumerate figures in a Petition or refer to alleged breach of contract or illegal detention of a vehicle. Again, to achieve this standard of prove to qualify for the award of special damages, the Petitioners ought to have not only pleaded specifically the special damages suffered, but also prove by evidence that they incurred the loss. This could have best been don by oral evidence and supporting documents which could have best been done in a civil suit as opposed to a Petition.40{2015} e KLR.41{2006} eKLR

53. The party with the obligation of persuasion-what Wigmore termed the risk of non-persuasion-is said to bear the burden of proof.42 The effect of non-persuasion on a party with the burden of proof is that the particular issue at stake in the litigation will be decided against the party. “Burden of Proof” is a legal term used to assign evidentiary responsibilities to parties in litigation. The party that carries the burden of proof must produce evidence to meet a threshold or “standard” in order to prove their claim. If a party fails to meet their burden of proof, their claim will fail.42F. James & G. Hazard, Civil Procedure § 7. 6, at 314 (3d ed. 1985); C. Mccormick, Evidence § 336, at 947-48 (1984); 9 J. Wigmore, Evidence § 2485, at 285 (J. Chadbourne rev. 1981).

54. By now it is clear that a claim for damages for breach of contract, or loss of profits or special damages must be proved strictly. Such standard of prove requires at best oral evidence to as opposed to affidavit evidence preferred by the Petitioner in this case.

55. By now, it clear that the Petitioner ought to have filed a civil suit as opposed to a Constitutional Petition. The Petitioners’ choice to file a constitutional Petition for the said claims calls for examination of two important concepts. These are the doctrine of ripeness and the doctrine of constitutional avoidance. Just like res judicata or the doctrine of exhaustion, these two doctrines can preclude a court from entertaining a case. These two concepts are completely different from the presence or absence of jurisdiction.

56. The doctrine of constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved.43 As a principle, constitutional avoidance has been linked to the doctrine of justiciability.44 Broadly speaking, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness.45 The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor46 in which Ebrahim JA said the following: -43S Woolman & M Bishop,Constitutional Law of South Africa(2013) 3-21. 44I Currie & J De Waal The Bill of Rights Handbook (2013) 72. 45Ibid, Page 72. 462001 (2) ZLR 501 (S).“…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.”

57. In Chawira & Ors v Minister of Justice Legal and Parliamentary Affairs & Ors47 the Constitutional Court of Zimbambwe held: -47CCZ 3/17“… courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.”

58. The court in S v Mhlungu48 laid out constitutional avoidance as a general principle in the following terms: -481995 (3) SA 867 (CC) 59. “I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”

59. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In Kenya, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. In the South African case of S v Mhlungu (supra) Kentridge AJ, stated in the dissenting opinion respecting the principle of avoidance (at paragraph 59), that he would lay down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. And in Ashwander v Tennessee Valley Authority49 the U.S. Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of. Currie and de Waal50 opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author’s state: -49297 U.S. 288, 347 (1936).50I Currie & J De Waal The Bill of Rights Handbook (2013) 72. “When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”

60. Important and critical issue(s) arise from the above statements by Currie and de Waal. It is the fact that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy.51 One needs to be aware however of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. Inessence all other laws give full expression to the ideals of the Constitution until found to be inconsistent to it.51See Article 2 (4) of the Constitution.

61. The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realisation that all legislative or common-law remedies are part of the legal system. In the United States of America, and as long back as 1885, Liverpool, New York and Philadelphia Steamship Co v Commissioners of Emigration52, Matthews J said:-52113 US 33 (1885) at 39. “(N)ever…anticipate a question of constitutional law in advance of the necessity of deciding it;…never….formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”

62. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause.The exceptions to the application of the doctrine of constitutional avoidance are: -i.where the constitutional violation is so clear and of direct relevance to the matter,ii.in the absence of an apparent alternative form of ordinary relief andiii.where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.5353Currie & De Waal above.

63. As alluded to earlier, a reading of the issues presented in this Petition leave no doubt that the Petitioner’s grievances on the prayers discussed above can effectively be addressed in a civil suit. This is a proper case for the court to invoke the doctrine of constitutional avoidance. Litigants should avoid trivializing the Constitution by constitutionalizing every dispute and leave constitutional adjudication to pure constitutional issues.

64. As alluded to earlier, I am alive to the fact that every case has a constitutional underpinning, be it criminal cases, civil or commercial. However, it is important to point out that not every dispute ought to be filed in the constitutional division of the high court unless it raises constitutional issues.

65. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute.54 The three issues raised in this case can be resolved by interpreting the facts, the contract document, (written or oral) and the relevant statutes.54http://www.yourdictionary.com/constitutional-question.

66. When determining whether an argument raises a constitutional issue, the court is not strictly concerned with whether the argument will be successful. The question is whether the argument forces the court to consider Constitutional rights or values.55 The issues stated above fall mostly in the realm of contract law. The South African Constitutional Court in Fredericks & Others v MEC for Education and Training, Eastern Cape & Others56 Justice O’Regan recalling S v Boesak57 stated: -55Justice Langa in Minister of Safety & Security v Luiters, {2007} 28 ILJ 133 (CC).56{2002} 23 ILJ 81 (CC).57{2001} (1) SA 912 (CC).“The Constitution provides no definition of “constitutional matter.” What is a constitutional matter must be gleaned from a reading of the Constitution itself: If regard is had to the provisions of ...the Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State.., the interpretation, application and upholding of the Constitution are also constitutional matters. So too,..., is the question whether the interpretation of any legislation or the development of the common law promotes the spirit, purport and objects of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction.”58582001 (1) SA 912 (CC)

67. Put simply, the following are examples of constituting constitutional issues; The constitutionality of provisions within an Act of Parliament; the interpretation of legislation, and the application of legislation.59 At the heart of the cases within each type or classification is an analysis of the same thing – the constitutionally entrenched fundamental rights. Therefore, the classifications are not discreet and there are inevitably overlaps, but the classifications are nonetheless useful theoretical tools to organize an analysis of the nature of constitutional matters arising from the cases before the Court.59Supra note 5 at paragraph 23

68. Courts abhor the practice of parties converting every issue in to a constitutional question and filing suits disguised as constitutional Petitions when in fact they do no not fall anywhere close to violation to constitutional Rights.

69. I now turn to the allegations against the Police. Article 245 (4) of the Constitution provides that “…no person may give a direction to the Inspector General with respect to— (a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons; or…”

70. The above provisions are meant to guarantee the independence of the National Police Service in the performance of its functions provided at section 24 of the National Police Service Act60which include:- (e) investigation of crimes; (g) prevention and detection of crime; (h) apprehension of offenders; (i) enforcement of all laws and regulations with which it is charged; and (j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.60Act No. 11A of 2011.

71. Despite the above clear constitutional dictates, the Petitioners are blaming the Attorney General for not advising the Inspector General of Police. The said argument flies on the face of the said provision. The functions of the Directorate of Criminal Investigations are provided at section 35 of the National Police Service Act61. They include—undertaking investigations on serious crimes including homicide, narcotic crimes, human trafficking, money laundering, terrorism, economic crimes, piracy, organized crime, and cybercrime among others; maintaining law and order; detecting and preventing crime; apprehend offenders; and performing any other function conferred on it by any other written law.61Act No. 11A of 2011.

72. A reading of the above provisions leaves no doubt that the police are legally obligated, once they witness or are informed of a crime, to investigate the offence. The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law. These obligations arise from the Constitution and are affirmed by the National Police Service Act. In terms of the above provisions, the functions of the police are to investigate crimes.

73. Investigation of crime(s) is a solemn duty imposed by law on the police. The duty of an investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the courts to record convictions but to bring out the real unvarnished truth. I have in several of my decisions stated that a police’s position is different from that of ordinary citizens in that they cannot simply walk away from a criminal offence that has been reported to them or has been brought to their attention. As was stated in S v Williams and Others:62621998 (2) SACR 191 (SCA), citing Booysen, Justice, in S v Barnes and Another 1990 (2) SACR 485 (N).“Although mere failure to report the crime to the authorities would not render a member of the public guilty of being an accessory after the fact of that crime ... a police officer is in a different position as it is his legal duty to bring criminals to book.”

74. It is the duty of the investigating officer to take into possession any document or object which has a bearing on the case. The reason for such a necessity is that such document or object may have effect on the culpability or innocence of the accused. Provided that the evidence is procured legally, then the investigating officer cannot be blamed.

75. The 2ndRespondents in the Replying affidavit state that they were investigating a case of stealing which is an offence known to the law. There is evidence that the Petitioner took the vehicle to the Police station and offered to have it detained awaiting production of the container. He was released on Police compulsion, but he never availed the container within the time he proposed. He was arrested at the Malava border. I find nothing illegal in the arrest. He faults the police for being arrested on a Sunday at Malava and transporting him to Mombasa. The police clearly accounted for the period of arrest and the trip to Mombasa. I find no basis to fault the police.

76. It’s not clear why the DPP was enjoined in this case. The process of establishing whether or not to prosecute usually starts when the police present a docket to the prosecutor. The DPP must consider whether to— request the police to investigate the case further; or, whether to institute a prosecution; or, whether to decline to prosecute. There is nothing to suggest that the DPP has made a decision. I find no basis to fault the DPP.

77. The Petitioners claims damages for breach of fundamental rights. The basis for this claim as captured in payers (h) of the Petition is premised on unlawful arrest and arbitrary detention. The practice developed in constitutional matters is to award damages for violation of constitutional rights, but it cannot be overemphasized that this is after there is evidence of the infringement.

78. In the instant case, the claim is premised on alleged unlawful arrest, arbitrary detention and detention of the motor vehicle. However, the arrest was pursuant to complaint. There is evidence that the 1stPetitioner offered to have the vehicle held at the station as he undertook to avail the container. There is evidence that he was released on police bond to avail the container but he failed to do so. This led to his arrest at Malava. He was transported to the station investigating the matter. Close attention to the facts of each individual case is required in order to decide on what is required to meet the need for vindication of the constitutional right which is at stake. There is nothing to show that his arrest and detention of the vehicle was illegal.

79. I find that the Petitioners have failed to prove the alleged infringement of their rights to merit the declarations/orders/damages claimed. Accordingly, I find and hold that this Petition fails. Consequently, I dismiss the amended Petition dated 18th February 2022 with no orders as to costs.

Orders accordingly

SIGNED, DATED DELIVERED VIRTUALLY AT MOMBASA THIS 6TH DAY OF MAY 2022JOHN MATIVOJUDGE