.
JUDGMENT
1. The Petitioner herein has instituted a petition dated 11th March 2024 seeking for the following orders:
- A declaration that the conduct of the Respondent’s agents are contrary to and inconsistent with the provisions of Article 10 of the Constitution of Kenya 2010.
- A declaration that the actions by the police enumerated in the petition constituted gross violation of the petitioner’s constitutional rights.
- A declaration that the Respondent violated constitutional rights of the petitioner and in particular Article 20(1) and (2), 24(1), 25©, 29, 31, 39, 47, 50(1) and 51 of the Constitution of Kenya 2010.
- Any other relief that this Honourable Court shall deem fit by dint of article 23(3) of the Constitution of Kenya 2010 and are just to grant in the circumstances.
- A declaration that the petitioner is entitled to the payment of compensation by way of damages and costs by the government of Kenya for the violation of his fundamental rights and freedoms guaranteed under the aforementioned provisions of the constitution.
2. The petitioner seeks the following damages:
- Special damages
- General damages
- Exemplary damages
- Aggravated damages
- Costs and interest on (a) to (d).
3. The petition is based on the ground that the Petitioner was at the material time living in Mombasa. That on the 27th December 2017 at 3 pm he was arrested by a group of police officers who confiscated his mobile phone and detained him without allowing him to contact his family, friends or relatives. They then transported him to Nairobi without informing him of the reason for his detention. They arrived in Nairobi at 3.30 am on 28th December 2017 and he was placed in the cells at Anti-Terrorism Police Unit (ATPU). That on the same day at 8.50 am he was taken to court where the prosecution told the court that he was being suspected for being involved in terrorism activities. They requested for his detention for 5 days to enable the police investigate the allegations. The court allowed his detention for 5 days. However, on the next day, 29th December 2017 he was set free without any investigations being conducted. The petitioner contends that the arrest and detention constituted a blatant violation of his constitutional rights and an abuse of the court process.
4. The petitioner further contends that during his court appearance, police officers mobilized reporters under the pretence that the petitioner was a dangerous individual and his photograph was published in leading newspapers on the 29th December 2017 which paper had a mass circulation and reach world wide through online publication and to date no publication has been put down.
5. It is the case for the Petitioner that the actions of the respondents were a violation of Article 47 of the Constitution as read with the Fair Administrative Action Act. The Petitioner contends that the respondents have shown bad faith and exhibited bias by taking steps against him before undertaking full and comprehensive investigations. That the steps taken by the respondents` agents were unreasonable and irrational as investigations were not complete. That they acted on the basis of misleading and false information without waiting for a proper, fair and impartial inquiry and without having all the facts that would help it as a public body make a just and fair decision.
6. The petitioner contends that the arbitrary action taken against him without determination of the veracity and justification of the false information denied him the right to equality before the law and the right to equal protection and equal benefit of the law. That the police have failed and or neglected to recognize and protect his rights to human dignity as provided under Article 28 of the Constitution.
7. It was contended that the police have denied the petitioner the right to property contrary to the provisions of Article 40 of the Constitution in that the petitioner`s businesses suffered devastating loss out of cancelled deals after he was labelled an Al Shabab agent. That as a result the petitioner was forced to dispose of his properties to pay off loans after all his business contracts were terminated. More so that his reputation has been dented and damaged by publication of the news of his detention on suspicion of being an Al Shabaab adherent and the news that he is being investigated by the respondent`s agents/police.
8. The petition was opposed by the respondent through their grounds of opposition dated 17th July 2024 in which they state that the petition is misconceived and cannot stand as the issues raised in the petition in relation to the arrest of the petitioner fall within the mandate of the National Police Service as provided in section 24 of the National Police Service Act (herein referred to as NPSA). That the petitioner was being suspected of being involved in terrorism activities and therefore the Anti-Terrorism Police Unit was fulfilling its mandate of prevention and detection of crime and preservation of peace as provided under section 24 of NPSA.
9. It was contended that the police have a duty to prevent and deter crime. That the further detention of the petitioner for additional 5 days as ordered by court was to conduct investigations and in no way amount to irrationality, unreasonableness or error of the law for the release of the petitioner on bond or bail would prejudice the investigation.
10. It was the contention of the respondent that the petition offends the third principle in the case of Anarita Karimi Njeru v Republic (1979) eKLR which requires a petitioner to clearly state how the actions of a respondent violates his or her constitutional rights. That the petitioner herein has merely stated the constitutional rights that have been violated and in no way mingles the said violations to the actions of the respondent herein. That the petition is bad in law and abuse of court process and should be dismissed.
11. The petition was disposed of by way of written submissions
Petitioner`s Submissions
12. The Petitioner in his submissions reiterated the grounds in support of the petition and urged the court to award him the prayers sought.
13. The petitioner in addition submitted that the act of him being labelled a terrorist led to the collapse of his businesses and claimed damages in compensation. He attached a table tabulating the loss as follows:
1. Loss of lorry contract for 8 years for 11 trucks working for 30,000/= x 25 days x 12 months x 8 years = Ksh. 792,000,000/=.
2. Poor health - as a result of being labelled a terrorist the petitioner fell ill and has been in and out of hospital thereby accumulating a hospital bill estimated at Ksh. 5 million.
3. Loss of business opportunities and defamation out of being labelled a terrorist – his known businesses failed as a result of defamation to his character by the illegal arrest and arraignment in court. He claimed an estimated total loss of Ksh.15 million.
Respondent`s Submissions
14. The respondent submitted that the petition does not meet the required threshold of constitutional petitions in that it does not demonstrate with some level of precision the manner of infringement of the constitutional rights as was stated in the case of Anarita Karimi Njeru v Republic (1979) eKLR where it was held that:
…..if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
15. Further reliance in this respect was placed in the Supreme court decision in the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR (2014) where the court stated that:
Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.
16. It was submitted that the petition herein lacks precision. That the petitioner cites bad faith, bias, and procedural unfairness but fails to show the court how the respondent acted in bad faith. Further that the alleged actions of irrationality, unreasonableness and error of law have not been accompanied by the ‘how’ principle by showing how the arrest, detention and arraignment infringed his rights. That the petition does not raise constitutional issues and fails to demonstrate how the rights of the petitioner were violated by failing to avail evidence to substantiate the violation of his rights.
17. On the issue of damages, the respondent submitted that an award of damages in constitutional petitions is discretionary and will depend on the circumstances of each case and can be granted in compensation for proven loss. The respondent in this respect cited the case of Gitobu Imanyara & 2 others v Attorney General, Civil No.98 of 2014 (2016) eKLR where the court stated that:
…. 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 others, an award of reasonable damages may be called for in addition to the declaration. Public policy considerations is also important because it is not only the petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.
18. It was submitted that in exercising such discretion, the test for injury and assessment is an objective one. The respondent cited the case of Mvumvu v Minister for Transport (2011) ZACC, as cited in PAK & another v Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] KEHC 262 (KLR) (24 March 2022) (Judgment), in which the court stated that:
That in determining a suitable remedy, the courts are obliged to take into account not only the interests of the parties, whose rights are violated, but also the interests of good government, these compelling interests need to be carefully weighed”.
19. The respondent submitted that their agents acted within their functions when they arrested, detained and arraigned the petitioner as it was within their mandate to apprehend offenders, prevent and detect crime as well as investigate crime. That for the petitioner to be awarded general damages he had to prove that his reputation was ruined and thus suffered loss. That the award of general damages in constitutional cases are limited to only proven damages and not presumed damages. The respondent cited the case of Carey v Piphus 435 U.S, 247 (1978) where the US Supreme Court ruled that:
While presumed compensatory damages may not be awarded in an action for a violation of procedural due process, nominal and proven compensatory damages are appropriate to redress such grievance. Presumed compensatory damages in this regard are general damages that are recoverable without proof of actual loss.
20. On special damages, the respondent submitted that the same has to be proved by way of verifiable evidence. The respondent made reference to D.B. Casson and I.H. Dennis, Odgers state in Principles of Pleading and Practice in Civil Actions in the High Court of Justice at pp.170 to 171 that:
Special damage, on the other hand, is such a loss as the law will not presume to be the consequence of the defendant’s act, but which depends in part, at least, on the special circumstances of the case. It must therefore always be explicitly claimed on the pleadings, and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant’s conduct. A mere expectation or apprehension of loss is not sufficient. And no damages can be recovered for a loss actually sustained, unless it is either the natural or probable consequences of the defendant’s act, or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted. All other damage is held remote.”
21. It was submitted that the fact that the petitioner has attached a letter of termination of contract between him and Mitchell Cotts Freight Kenya Limited is not enough evidence to prove the loss in special damages.
22. The respondent submitted that the justice of this case does not favour the granting of damages for breach of constitutional rights but instead that a declaration of violation of rights would be appropriate remedy in the circumstances of the case. The respondent urged the court to dismiss the petition with costs.
Analysis and Determination
23. I have considered the petition, the grounds in support thereof and the grounds in opposition thereto and the submissions. The issues for determination are:
1. Whether the petition satisfies the threshold for filing of constitutional petitions
2.Whether the Petitioner’s constitutional rights and freedoms have been violated
3.Whether the Petitioner is entitled to the orders sought.
Whether the petition satisfies the threshold for filing of constitutional petitions
24. The principle set out in Anarita Karimi Njeru v Republic (supra) is that a petitioner seeking reliefs through a constitutional petition on the basis of violation of the constitution, constitutional rights and fundamental freedoms, must plead with a higher degree of precision, show the constitutional freedoms violated, the manner of violation, the Constitutional provision in question or violated and the jurisdictional basis for the litigation.
25. The principle found support by the Court of Appeal in Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR, where it was said that:
“We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication; a person claiming constitutional infringement must give sufficient notice of the violations to allow her adversary to adequately prepare her case and to save the court from embarrassment on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a Petition as stated raises issues which are too insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The test does not demand mathematical precision in drawing constitutional Petitions. Neither does it require talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against the Respondents in a constitutional petition are fashioned in a way that gives proper notice to the Respondents about the nature of the claims being made so that they can adequately prepare their case.”
26. The same was emphasized by the Supreme Court in the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it was stated that:-
“[349] Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
27. The issue in the present matter is whether the petitioner has in his petition shown the rights infringed and the basis of his grievance.
28. The petitioner has cited several articles of the constitution alleged to have been infringed against him. It is apparent from the petition that the drafting of the same was poorly done. However, that does not bar this court from granting the orders sought if there is evidence of infringement of the constitution and there is proper notice to the respondent of the particular article alleged to have been infringed. As held in Communication Commission of Kenya & 5 others v Royal Media Services Limited (supra), the test is whether the complaint against the respondent in a constitutional petition is fashioned in a way that gives proper notice to the Respondent about the nature of the claim being made so that they can adequately prepare their case. On the same point the Court of Appeal in Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR stated that:
“(41) We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial ---decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
29. Even where a petition is not properly drafted, it is the duty of the court to satisfy itself from the pleadings whether it can discern whether there was violation of constitutional right. In the case of Musili Mwendwa v Attorney General & 3 others [2016] eKLR the Court stated thus: -
“The rule in Anarita Karimi Njeru vs Republic (supra) ought not to be applied hook, line, and sinker. It is not about absolute precision. If a party and, a priori, the court can identify the complainants’ case painlessly, then the matter ought to be determined substantively and on its merits.”
30. The issue, in my view, is whether the court can discern from the evidence whether there was infringement of the petitioner`s rights in any of the articles cited.
31. The petitioner accuses the respondent of violating his right to freedom by effecting an arbitrary arrest on him without any justification contrary to the provisions of the constitution. The relevant Articles of the Constitution are cited. His supporting affidavit explains his arrest, detention and presentation before court and before release without any charge. I find the pleadings in the petition to be sufficient as to inform the respondent of the case against them as far as violation of the constitution in respect to the arrest of the petitioner is concerned. It is my finding that the petition on the arrest and detention of the petitioner raises a constitutional issue and thereby meets the threshold of a constitution petition as set out in the Anirita Karimi Njeru case.
Whether the petitioner`s constitutional rights were breached
32. The petition is premised on alleged contravention of fundamental rights and freedoms under Articles 25(1), 29(a), 29(c), 29(d) of the constitution. Article 29 provides as follows:
Freedom and security of the person
Every person has the right to freedom and security of the person which includes the right not to be –
(a) deprived of the freedom arbitrarily or without cause;
(b) …………..
(c) ……………
(d) subjected to torture in any manner, whether physical or psychological…
33. The parties in the case consented to proceed by affidavit evidence. The petitioner in his supporting affidavit sworn on the 7th March 2024 set out the grounds in support of the petition that he was on the 27th December 2017 arrested by police officers in Mombasa without justifiable cause and taken to Nairobi where he was on the following day presented in court with allegations that he was an Al Shabaab agent and despite opposition from his counsel, the police sought for his detention for 14 days pending investigations. That the court ordered him to be detained in custody for 5 days but come the following day on 29th December 2017, he was released without any charges.
34. It was the contention of the Petitioner that the police through their acts and omissions took him through a process that was rushed, malicious and intended to irreparably violate his fundamental rights and freedoms guaranteed under the constitution. Further that the actions of the police officers displayed bad faith and abuse of discretion and powers.
35. The petitioner claimed in his petition that he suffered as a result of the constitutional violations as he had his business contracts terminated and was forced to dispose of his properties to pay off loans after all his business contracts were terminated. The petitioner consequently sought for the reliefs stated in paragraph 1 above.
36. The respondent opposed the petition vide grounds of opposition dated 17th July 2024. However, there was no replying affidavit from any agent of the respondent denying the factual basis of the petition regarding the arrest of the petitioner, detention, his presentation before court and subsequent release without charges.
37. It is trite law that where a defendant does not adduce evidence in a case, its defence remains mere statements of fact. In the case of Chrispine Otieno Caleb –vs- Attorney General (2014) eKLR Justice G.V Odunga held that:
“Again in the case of Trust Bank Limited –vs- & 2 others Nairobi (Milimani) H.C.C.C. No. 1243 of 2001 the learned Judge citing the same decision stated that it is trite where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence by the Plaintiff against them is unconcontroverted….”.
38. Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni J. (as she then was) citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
39. The arrest and detention of the petitioner in this case was uncontroverted. It was not disputed that the petitioner was being accused of being an adherent of a terrorist organization, the Al Shabaab. Even after the court granted the investigators 5 days in which to hold the petitioner so as to conduct investigations in the matter, the police released him on the following day without preferring any charges on him. This can only mean that the police actually had no investigations to conduct against him as they cannot have finished investigations overnight. It can only mean that the arrest and the allegations that he was being suspected of being an Al Shabaab agent was all a made-up story. If in actual fact the suspicions were true, nothing prevented the police from completing investigations before arresting him. The police must have rushed to arrest the petitioner for ulterior motives only known to them.
40. Additionally, the respondent never brought forth any evidence to show that the police had reasonable and probable cause for the arrest and detention of the petitioner. I find the arrest of the petitioner to have been arbitrary and without any justifiable cause. The police violated the fundamental rights of the petitioner by depriving him of his right to freedom by carrying out an arbitrary arrest on him and incarcerating him without justifiable cause which was a violation of Article 29(a) of the Constitution of Kenya, 2010. The defence of the respondent that the police acted within their functions when they arrested the petitioner as it was within their mandate to prevent, detect and investigate crime does not hold water as they never laid down evidence to show that there was reasonable cause for the arrest and detention. I find that the constitutional rights of the petitioner were violated as a result of his arbitrary arrest and detention without cause. The petitioner is entitled to damages.
The claim for damages
41. The petitioner claims the following damages for violation of constitutional rights and freedoms: general damages, exemplary damages, aggravated damages and special damages.
42. The petitioner was arrested in Mombasa and ferried to Nairobi through road, a journey that took no less than 8 hours. He was denied the right to call his family, friends and lawyer. In Nairobi he presented before court with allegations that he was an Al Shabaab suspect for which there was no evidence. He was incarcerated for 2 days after which he was released without charges. He was labelled an Al Shabaab adherent without just cause.
43. Counsel for the petitioner in his submissions did not propose any amount of quantum in general damages for violation of constitutional rights. Neither did the respondent.
44. The guiding principle in awarding damages for violation of constitutional rights was stated by the Court of Appeal in the case of Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR where the court held that:
”Consistent with the above judicial experience and philosophy, 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 within the discretion of a trial court, however, the courts discretion for award for damages in constitutional violations cases though is limited by what is “appropriate and just” according to the facts and circumstances of a particular case….The primary purpose of a constitutional remedy is not compensating for punitive but is to vindicate the rights violated to prevent or defer any future infringements. 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 others, an award of reasonable damages may be called for in addition to the declaration….”
45. It is therefore the discretion of the court to award damages for violation of the constitution but the same is limited by what is “appropriate and just” according to the facts and circumstances of each particular case and the proven damages. As to what is “just and appropriate” was discussed by the Supreme Court of Canada in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, as cited by the Court of Appeal in COI & another v Chief Magistrate Ukunda Law Courts & 4 others [2018] eKLR, to include, a remedy that will:
(1) meaningfully vindicate the rights and freedoms of the claimants;
(2) employ means that are legitimate within the framework of our constitutional democracy;
(3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and
4) be fair to the party against whom the order is made.
46. The petitioner herein was arrested, ferried from Mombasa to Nairobi overnight and detained for 3 days without justification. He was paraded before court and accused of being an Al Shabaab suspect without justification. I a m persuaded that the unlawful acts of the agents of the respondent caused the petitioner to suffer psychological torture and trauma for which he is entitled to general damages for violation of his right not to be deprived of the right to freedom and security of the person arbitrarily and without just cause, contrary to Article 29 (a) of the Constitution of Kenya, 2010 and the right not to be subjected to torture in any manner whether physical or psychological contrary to Article 29(d) of the Constitution of Kenya, 2010. Taking the principles stated above into consideration, I award him general damages of Ksh.1,500,000/= for the said violation.
47. The petitioner is also claiming for exemplary damages for violation of his constitutional rights. The guiding principle in this regard was stated in Civil Appeal 132 of 2001 Bank of Baroda (Ky) Ltd v Timwood Products Ltd ( as cited in Kweri v Beehive MediaLimited; Capwel Industries Limited (Interested Party) (Constitutional Petition E321 of 2021) [2023] KEHC 2684 (KLR) (Constitutional and Human Rights) (31 March 2023) (Judgment) where it was observed that:
Punitive or exemplary damages would be granted where;
a) There is oppressive, arbitrary or unconstitutional action by servants of the government;
b) The defendant’s action was calculated to procure him some benefit, not necessarily financial at the expense of the Plaintiff.
c) where exemplary damages are expressly authorized by statute.
48. Such damages usually serve penal and deterrent functions in cases of gross constitutional violations as well as vindicatory function. The petitioner herein was released after one day even after the court had granted the police 5 days in which to hold him. I am not persuaded that there was gross violation of the constitution as to warrant punitive damages. The claim for exemplary damages is declined.
49. As for aggravated damages, the same are awarded where the defendant acts out of improper motive, as stated by the Court of Appeal in the case of Miguna Miguna v The standard Group Ltd & 4 others [2017] eKLR while quoting the case of John v GM Limited [1993] QB 586:
“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.”
50. No such evidence was led in this case. The claim for aggravated damages has not been proved and the prayer for the same is declined.
Special Damages
51. It is trite law that special damages must not only be pleaded but also strictly proved. In Bangue Indosuez vs DJ Lowe and company Ltd [2006] 2KLR 208 it was held that;
“It was trite that special damages must not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and probability of proof required depends on the circumstances and the nature of the acts themselves.”
52. The respondent pleaded in his petition that his businesses suffered devastating loss out of cancelled deals after he was labelled an Al Shabaab agent. He pleaded that he was forced to dispose of his properties to pay off loans after all his business contracts were terminated. He further pleaded that he will or is likely to miss opportunities in advancement of his career in business.
53. It is clear from the petition that the petitioner did not spell out explicitly what he was claiming in terms of special damages. He did not plead the exact business contracts that were cancelled as a result of his arrest. He did not plead the businesses that went under as a result of business contracts being terminated. Neither did he plead the amount of money lost as a result of the arrest and detention. There was no affidavit sworn to support the claim. Documents were just filed together with the petition without any explanation as to what they were supposed to proof. I find that special damages were not properly pleaded as required by the law.
54. Even if the special damages were properly pleaded, the petitioner did not adduce evidence in proof of the same. The reason and manner of proof of special damages was stated by the Court of Appeal in the case of Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others (Civil Appeal 243 of 2017) [2021] KECA 328 (KLR) (17 December 2021) (Judgment) where it was stated as follows:
It is trite under common law in this regard that special damages must be specifically pleaded and proven. This Court is guided by the reasons why special damages must be pleading and proved as set out in D.B. Casson and I.H. Dennis, Odgers: Principals of Pleading and Practice in Civil Actions in the High Court of Justice at pp. 170 to 171:
“Special damage, on the other hand, is such a loss as the law will not presume to be the consequence of the defendant’s act, but which depends in part, at least, on the special circumstances of the case. It must therefore always be explicitly claimed on the pleadings, and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant’s conduct. A mere expectation or apprehension of loss is not sufficient. And no damages can be recovered for a loss actually sustained, unless it is either the natural or probable consequences of the defendant’s act, or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted. All other damage is held remote.”
55. The petitioner’s supporting affidavit only explained about the arrest and did not mention anything about the loss incurred as a result of the arrest. Instead the loss was tabulated in the submissions of his counsel. The law is that submissions do not constitute evidence and no judgment can be awarded out of submissions not supported by evidence, see Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR. In view of the fact that the loss was not mentioned in the supporting affidavit, which affidavit acted as the evidence in the case, the end result is that the petitioner did not adduce any evidence to support the claim for special damages.
56. That notwithstanding, there does not appear to be a direct link between the loss purported to have been incurred by the petitioner and the arrest by the police. In my view, the purported loss was not the natural or probable consequence of the act of the police. The claim for special damages was in my view remote and is for dismissal.
Disposition
57. It is the finding of this court that the petitioner has partly proved his case against the respondent and issues the following orders:
(1) A declaration that the actions by the police enumerated in the petition constituted gross violation of the petitioner`s constitutional rights, in particular Article 29 (a) and (d) of the Constitution of Kenya 2010.
(2) That judgement be and is hereby entered in favour of the petitioner in the sum of Ksh.1,500,000/= by way of general damages.
(3) That the above sum shall attract interests at court rates from date of judgment until payment in full.
(4) That the Respondent do pay the costs of this Petition to the petitioner.
(5) That the rest of the claim is dismissed.
Orders accordingly.
Delivered virtually, dated and signed at GARSEN this 30th day of January 2025.
J. N. NJAGI
JUDGE
In the presence of:
Kiogora for Petitioner
N/A for Respondent
Court Assistant - Jarso