Geoffrey Githiri Kamau v Attorney General [2015] KEHC 2557 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  378 OF 2010

GEOFFREY GITHIRI KAMAU………………...PLAINTIFF

VERSUS

THE HON. ATTORNEY GENERAL…………DEFENDANT

JUDGMENT

The plaintiff  Geoffrey Githiri  Kamau  instituted  this suit  on 23rd July 2010  against  the defendant  Attorney General claiming  for general damages suffered  when he  was allegedly  wrongfully and  unlawfully  and without any  justifiable  cause  arrested, detained and  assaulted  by the  agents, servants  of the Attorney General namely, police officers   attached to Magumu police station from 4th January  2010 to 6th January 2010. The plaintiff also claims for costs of the suit.

In his  plaint dated  21st July 2010, the plaintiff alleges that the police officers  from Magumu police station did arrest  and detain him in their  custody  from 4th-6th January  2010  without  any suspicion  or justifiable  cause and in the process  they  battered  and assaulted  him  as a result  of which  he sustained  injuries  involving.

Soft tissue injuries   to the neck.

Tenderness of the mid 1/3 of the spine.

Bruises on the dorsal aspect of the fingers bilaterally.

Tenderness scrotal area.

The plaintiff claims that he issued notice of intention to sue but the defendant had refused to admit liability or compensate the plaintiff in damages thereby rendering the suit necessary.

The Attorney General entered  an appearance  on 30th August  2010 and filed defence  on 19th October  2010 denying  the claim  by the plaintiff in toto  and putting  the plaintiff to strict   proof thereof.  The defendant also denied that any notice of intention to sue was ever given. The defendant also averred that the suit was bad in law for contravening the mandatory provisions of the Civil Procedure Act.

The plaintiff  testified  as PW2 on 15th December  2014  and told the  court  on oath , adopting  his witness statement recorded  and filed on 6th September  2011 that on 4th January 2010 he was at Magumu  Trading Centre  in Nyandarua  in a cyber  café   when his  friend  by  the name John Mburu  Kimani   from the same locality  as the plaintiff  informed   the plaintiff that he had a problem  with his Mpesa  transaction in the sense  that he  had received Mpesa  money on 11th December 2009 from  Claydon Holdings  in the sum of shs 10,000/-.   The said  Kimani asked  the plaintiff  to accompany  him to the Claydon  Holdings  to confirm from them if  they had send Kimani  the  Mpesa  transaction No. 10 in the schedule, after  calling Safaricom customer care who advised  him to go to the  sender Claydon Holdings  who were within  the Mugumu  Shopping  Centre.

That on arrival at the Claydon  Holdings, they were  advised  to proceed  to the Mpesa  shop to contact  the  owner of the Mpesa  shop M/s Beatrice  Wanyara who happened to  be in Naivasha  but that  her employee called her and asked  Kimani  and the plaintiff  to wait for her  at her shop.

According to the plaintiff, the  employee at the Mpesa shop also showed  them the  Mpesa transactions  records  for 11th December  2009 and  they confirmed  that the money  had come  from that Mpesa shop but  the identity  of the sender  could  not be recognized.

At around  11. 00am, the said Beatrice  Wanyara  came and  they explained  to her the issue of  which she  called police  officers who came  armed with  guns  and Beatrice  old them that the plaintiff  and Kimani  had been harassing  her employee purporting  to be from  Safaricom.  At  that point, the police  officers  arrested  the  plaintiff  and his friend  Kimani without giving them  an opportunity  to explain themselves  and escorted  them to Magumu police  station, booked  and as they  were surrendering then personal effects  the plaintiff was calling his lawyer  when  one  of the police  officers grabbed  the plaintiff’s  phone  and all the police  officers started  battering ( assaulting John Kimani and the plaintiff with  kicks  and blows.  The plaintiff   testified that one police officer held him by the neck and pushed him on the repost desk.  Another police  office hit the  plaintiff by squeezing  his scrotum  and another  police officer  stepped  on the plaintiff’s fingers  while  he  was on the ground.  They were 5 police officers all beating up the plaintiff before throwing him in an isolated cell.  John was beaten unconscious and was later brought in to join the plaintiff in the cell.

The police officers then detained the plaintiff for 3 days until 6th January 2010 saying they were waiting   for the OCS to arrive from Meru.

The plaintiff’s father followed  up the  matter  and secured  the plaintiff’s  release  only after  paying cash  bail  of kshs  5000/- for each the plaintiff  and his  friend  who were then  bonded to appear  in court on 8th January 2010.

The plaintiff testified that before leaving the police station, he requested that his report of having been assaulted by police officers and sustaining of injuries be recorded but the officer in charge a Mr Wesonga refused.  The plaintiff identified the officers who assaulted him as Corpral Mutai, Kibet, Mulu and Mutisya, Itulia and PC Yegon.

He also testified that he was released on instructions of Sergeant Wesonga.  The plaintiff produced police OB extract as P exhibit 4.  The plaintiff testified  that he was arraigned  in court charged  with criminal  case No. 65  of 2010  before Naivasha  Senior Principal Magistrate’s Court, with the  offence of attempt  to extort by threats contrary  to Section 300  of the Penal Code  and  personating  contrary to Section 382  of the Penal Code  Cap 63 Laws of Kenya.  The said criminal case  was heard  and concluded  on 11th November 2011 wherein the plaintiff  was acquitted, with the trial magistrate  observing   that the  charges  against the plaintiff  were framed up as  the complaint  was made  after  his arrest.  The plaintiffs produced copy of judgment in the criminal case as P exhibit 5.

The plaintiff also testified that he obtained a P3 from the police station.  He was treated for swollen scrotum which developed a wound   on and off.  His fingers also hurt.  He suffered back pain and pain in the neck.  He was examined by Dr. Wainaina.  He later instructed his lawyers to issue notice to the Attorney General which he produced as P exhibit 6.

The plaintiff urged the court to award him damages for physical torture   and unlawful detention that he underwent for 3 days in the hands of  police officers.  He also sought aggravated damages and costs of the suit.

In cross examination by Miss Ngelechei counsel for the defendant, the plaintiff responded that he worked as the CEO in Mirera, Naivasha and that he got names of the police officers who tortured him through   the investigation diary.  He also stated  that albeit  the investigation  diary stated that  they did not make any  complaint but that  they complained  of the injuries  they had sustained  and that he attended  Naivasha  District Hospital where he was treated.

He stated that he was examined by Dr. Wainaina who prepared a medical report.  Further, the plaintiff stated that he was strangled on the neck, suffered injury on the spine, a squeezed scrotum and fingers injured as a result of being stepped on.  That the police officers  hit him on the chest  up to stomach area albeit  he had now healed  after  sometime and that what  he sought was   for compensation for battering and torture.  The plaintiff also stated that he also seeks for damages for unlawful arrest and detention in paragraph 3 of the plaint.  Further, that the investigation diary did not state what complaint he had and that the officers who released them are the ones who tortured him.  He stated that  they requested  that  their complaint of torture be recorded  but were instead  minuted  ‘ without a complaint’Further, that when they  returned  and complained, a P3 form  was issued to them by the officer in charge.

The plaintiff’s witness PW1 was  Dr. Margaret  Wainaina  testified  that she holds  a Bachelor  Degree in medicine (Surgery) from the University of Nairobi and currently  pursuing a Masters Degree  and working as  a Medical Doctor  at Kenyatta National  Hospital.

PW1 testified  that in January 2010 while  she was working at Naivasha  Hospital and running  a part time medical  clinic  in Naivasha town, she received  and examined  the plaintiff herein  on 8th January 2010 and  filled  his P3 form.  She stated that the plaintiff Geofrey Kamau Githiri presented with complains of soft tissue injuries on the neck and a hoarse voice.  He also  had injuries  on his spine, and  tenderness in the scrotal area  with bruises, the  injuries  were one week old  from date  of injury  and that the probable  weapon  used to  inflict the injuries  was a blunt object.

She further testified that the plaintiff had previously been attended to and given analgesics.  She assessed  the degree  of injury as harm, filled  his P3  form  on 8th January 2010  and later  on  26th April 2010  she examined  and  prepared  a medico-legal  report for the  plaintiff  reflecting  the injuries  sustained   while in police custody. Doctor Wainaina testified that nonetheless, the said injuries had healed although the plaintiff had suffered psychological trauma. She produced the medical report for the plaintiff as P exhibit 2 and a receipt for kshs 2000 for preparation of the medical report.

In cross  examination  by Miss  Ngelechei  PW1 responded that she  first saw  the patient (plaintiff on 8th January 8th January 2010 when she  filled  his P3 form although she did not treat  him but  that she had  treatment  notes  which the  plaintiff brought to her on  the said date.  She also answered that the injuries sustained had healed but he still had complaints.

The defendant had no witness to call so they closed their case and both parties were directed to file and exchange written submissions. Todate, despite this matter coming  up on 4th March 2015  and 4th May 2015, the defendant  has not filed any written  submissions.

The plaintiff filed his written submissions on 27th February 2015 and framed 5 issues for determination.  He also relied on the case of Leonard Ataro Peter Ajaro v Attorney General (2008) e KLR.

On issue No. 1 of  whether  the plaintiff  was arrested  and detained by the defendant’s servants  ie police officers  and  if so, whether they had lawful  excuse  or cause  or reasons  to do so, the  plaintiff submitted that  the fact of arrest can be  discerned   from the testimony  by the plaintiff.  It was submitted that the plaintiff was starred for 3 days.  He was beaten, throttled and chocked on his private parts kicked and squeezed.  It  was  further submitted that the  trial magistrate  in the criminal case  found  that the  evidence   relating to  extortion  and personation  was made up as the  plaintiff  was arrested  before  a report  a complainant  was lodged  hence  there was no good reason to  arrest, detain and torture   the plaintiff   and or prosecute him on whether  the court has  jurisdiction  the plaintiff’s counsel submitted that this  court has  unlimited   jurisdiction as provided  for under  Article  15  3 (a)  of the Constitution .

On whether  Notice of  institution  of suit  was served  upon the  defendant it was submitted on behalf  of the plaintiff and the plaintiff had produced  P exhibit 5   Notice of Attorney General showing service as it bears  stamp and signature  of receiving  officer at  the Attorney General’s chambers   further, that the said notice  out the cause of action and names of  police officers  who tortured him.

On whether  the defendants  servants  or agents   tortured the plaintiff, it  was submitted that the plaintiff’s  testimony  supported   by P3 form and medical  report attest to that  fact  on whether  the defendant  was a stranger to the claim, it was submitted that the plaintiff had  shown that he was arrested, detained, prosecuted , acquitted and served notice  of intention to sue.

On whether  the plaintiff is entitled  to damages, it was submitted  that the plaintiff’s evidence  was uncontroverted  and therefore  he  was entitled  to damages, having  proved  his case on  a balance  if probabilities  bases on the case of Leonard  Atara Peter  Ajaro v Attorney General ( supra) where the  plaintiff  was awarded  kshs 1,200,000 general damages and kshs 700,000 exemplary  damages, the plaintiff  urged this court to award him kshs 1,000,000 exemplary damages  and kshs 1,500,000 general damages together  with costs  and interest.

I have carefully considered the plaintiff’s case, the pleadings, testimony, submissions and authority supplied to court.

There are two issues for determination namely, whether the plaintiff has proved his claim against   the defendant on a balance of probabilities and secondly, whether the plaintiff is entitled to damages and if so, how much.

On liability, the plaintiff pleased  and testified  that he was unlawfully  and  unjustifiably  arrested, detained, starved  and physically assaulted by 5 police officers who kept  him in the cells at Magumu police station  for 3 days.  He was then arraigned  in court and charged with the offences   of attempted  extortion by threats and  personating.  He was prosecuted, the case lasted for two years in Naivasha court and he was acquitted of the offence on both counts.  He produced  copy of investigation diary   from the police  station, his friend  John Kimani’s Mpesa account  statement  A/C 3427556-16, outpatient  identification  slip  from Naivasha  District Hospital  for 11th January 2010, P3 form  OB 28 of 8th January 2010  and medical report  by Dr Wainaina  showing the injuries  sustained  by the plaintiff  following the assault complained of  and notice to the Attorney General  to sue, giving him 30  days.

Thus on proof, albeit  the Attorney General denied  the claim in his defence  filed on  19th October 2010,  there  is ample evidence  from the  investigation  diary that the plaintiff was arrested on 4th January 2010, held  until 7th January 2010  when he was released  on cash bail  of kshs 5,000/- There is also  an entry on 8th January 2010 of  a complaint  by the plaintiff to the police station that he had  been assaulted  while  in police custody  but that  he never  reported the same during his release  and that he  did not  produce  treatment sheet.  The police officer IP Rucho nonetheless issued the plaintiff with a P3 form with comments that he did not see any sign of injuries on the plaintiff.  The P3 showed injuries on the neck, hoarse voice, tenderness of mid 1/3 of the spine, bruises on the dorsal aspect of fingers bilaterally and tenderness on scrotal area.

There is also evidence of court judgment  from SPM’s  Court Naivasha Criminal Case No. 65 of  2010  wherein the plaintiff  was jointly charged  with John Mburu Kimani with the  offence  of threats  contrary to Section 300(a)  of the Penal Code on 4th January 2010 at  Magumu Trading Centre  ( at Claydon Holdings Ltd) and separately  charged with impersonating   an official  of Safaricom Ltd wherein PW2 Beatrice Wambui Henia  conceded that the plaintiff did not demand any money and  further, the trial  magistrate  found no  evidence of threats  or impersonation as such  reports were  only booked  after the plaintiff  had been arrested.  The trial magistrate also observed   that the complainant therein did not give any details of the threats made to her.

Although the plaintiff’s testimony and submissions focus on unlawful arrest and malicious prosecution as well, this court holds that parties are bound by their pleadings.  There is no pleading related to malicious prosecution.  There is however ample evidence that the plaintiff   was arrested and detained in custody before a formal  complaint  was made  as observed  by the trial  magistrate which I find  to have been  wrongful  and unjustifiable.  A report made to the police station require investigation.  In this case, the arrest and detention preceded the formal report to police station. In addition  there  was no justifiable  cause for  the detention  and  torture  of the plaintiff  while  in police custody.  If the plaintiff had committed any offence, he deserved to be treated with dignity and arraigned before a court of law. Instead, the police officers took upon themselves the task of “punishing” the plaintiff for the alleged wrongdoing before arraigning him before court. This was totally uncalled for. I therefore find that the plaintiff has proved, on a balance of probabilities that he was unjustifiably arrested, detained for 3  days and viciously tortured  while at  Magumu  police station.  He sustained injuries contained in the P3 form and confirmed by Dr. Wainaina who examined him. The plaintiff’s evidence has not been controverted by the defendant.

In the end, I find that  the defendant  Attorney General is vicariously liable for the wrongful acts of  agents/ servants  of the Government-police officers who  were  on duty when they unlawfully and unjustifiably  arrested, false fully  imprisoned  and assaulted the  plaintiff thereby occasioning him not only physical injuries  but also psychological  torture.

The  authority of Leonard Ataro Peter Ajaro v Attorney General  cited by the plaintiff is inapplicable  in the circumstances  of  this case as it related to  a case of malicious  prosecution  which is totally different from  this case  wherein  pleadings disclose  false arrest, detention and torture.  In a case for malicious prosecution, the plaintiff should have pleaded particulars of malice and proved the same at the hearing.

There was no such pleading related to a case of malicious prosecution and so I shall not belabor that point which only emerged in the plaintiff’s counsel’s submissions.  I find that the plaintiff  proved that his arrest, detention and torture  by police officers who are tasked with protection of citizens was unjustifiable  and unlawful  and malicious since there  was absolutely no evidence that  the  plaintiff  who had merely escorted  his friend  to inquire on the Mpesa  deposit  ever issued   any threats  or even impersonated the investigators  from Safaricom Ltd.

Malice of the part of the police officers can be inferred from the manner in which they high handedly manhandled the plaintiff.  They denied him food, kicked him around without caring whether he would lose his eye or genitals.  Those actions by the defendant’s agents were inhuman and degrading to the plaintiff.  He suffered both psychologically and physically as shown by the P3 form and medial report and as was observed by the medical doctor Wainaina who examined him.

The plaintiff no doubt suffered humiliation as well as physical injuries which were pleaded and proved in court, as reproduced in this judgment.

In Nahashon Mwangi Mwaura v Commissioner of Police & another HCC 163/2006 (2015) e KLR – Mabeya J awarded kshs 800,000/- to the plaintiff who was unlawfully arrested, confined and maliciously prosecuted.

In Joseph C. Mumo vs Attorney General & another (2008) e KLR  the court - Nabuye J awarded kshs 300,000 to a plaintiff for defamation, unlawful arrest, false imprisonment and malicious prosecution.

In this case, as the plaintiff did not plead and prove malicious prosecution, I award him nothing under that head.

He has however proved that he was unlawfully and unjustifiably arrested, confined and tortured.  Under the heading of false and unlawful arrest and confinement for 3 days, I award the plaintiff a sum of kshs 400,000/-.  On the claim for  general damages  for injuries sustained  by the plaintiff  upon being  tortured, I note that  the plaintiff  sustained   injuries  on the  neck, back, fingers, scrotum and  in his throat  upon being  strangled .  The injuries healed but he remains with pain in the lower back, horse voice and recurring wound in his scrotum.  He suffered physichological trauma following the torture by police officers who are government law enforcement agents and who are entrusted   with the responsibility of protecting human lives.  Arresting and torturing a suspect   is not one of the police service functions or powers.  There was no evidence that the plaintiff resisted arrest or was armed and was a threat   to the police officers who were to arrest him.  There is also no evidence that upon being arrested, the plaintiff was vicious.  In my view, the force applied on him leading to the injuries that he sustained was unwarranted in the circumstances.  This court is unable to comprehend what provoked the police officers to exert that amount of force or engage in the assault of the plaintiff.  The assault on the plaintiff   was not accidental.  It was deliberate and the police officers being human beings themselves knew or ought to have known the consequences of assaulting another human being.  The plaintiff is lucky that he sustained what is described as soft tissues.  He however suffered psychological trauma.  He conceded in cross examination that he had healed over time.

But before  I decide on what amount  of general damages  the plaintiff should be  entitle to, I must  address the submissions on aggravated  damages  which were not pleaded .  Aggravated damages are awarded in actions where damages are at large.  That is to say where damages are not limited to the pecuniary loss that can be specifically proved.  They are normally awarded in actions of defamation, intimidation, false imprisonment, malicious prosecution, trespass to land, persons or goods, conspiracy and infringement of copyright, among others.

Such damages are part of, or included in the sum awarded as general damages and are therefore at large.  As such, they need not be specifically pleaded or included in the prayer for reliefs.  See Rookers v Banard (1964) 1A ER 367.  However, where the plaintiff relies on any facts or matters to support his claim for aggravated damages, it is desirable that he should plead those facts or matter.  The matters that the court should take into account in awarding such damages include the defendant’s motives, conduct and manner of committing the tort.  The court has to consider  whether  or not the  defendant  acted with  malevolence  or spite  or behaved  in a high  handed, malicious, insulting or aggressive manner.  The court may also consider the defendant’s conduct up to the conclusion of the trial including what he or his counsel may have said at the trial.  If any of the defendant’s acts will have worsened the plaintiff’s damage by injuring his feelings of dignity and pride that may also be considered.  In awarding aggravated damages, aggravated damages are therefore compensatory in nature (see Abdulhamad Ebrahim Ahmed v Municipal Council of Mombasa (2004) e KLR Maraga J.

In this case, I find that indeed  the defendant’s acted  in a high handed manner, arbitrarily, oppressively thereby  aggravating the false unlawful/unjustifiable  arrest as  there was no  formal  complainant made to the made  to the police against the  plaintiff, and in falsely imprisoning  the plaintiff   the police officers  went beyond   arrest and confinement of a suspect by torturing him.  (see Bank of Baroda (K) Ltd v Timwood Products Ltd CA 132/2001; Obongo & Another v Municipal Council of Kisumu (1971) EA(Court of Appeal).

In the circumstances, I award the plaintiff kshs 300,000 aggravated damages.

Back to general damages for the  actual injuries  that the plaintiff suffered, I note that the injuries sustained  were soft tissue and had healed  at  the time of  hearing this case, by  the plaintiff’s own admission in cross examination .

In the case of Ugenya Bus Service v Gachuki (1976-1985) EA 575 page 579 the venerable Madan, J.A.  (as he then was) aptly captured the difficulties that confront a judge in assessment of general damages in the context of personal injuries as follows:-

“General damages for personal injuries are difficult to assess accurately so as to give satisfaction to both parties.  There are so may incalculable.  The imponderables vary enormously.  It is a very heavy task.  When ponderingly struggle to seek a reasonable award, I do not aim for precision.  I know I am placed on an inescapable situation for criticism by one party or the other, sometimes by both sides.  I also therefore do not aim to give complete satisfaction but do the best I can”.

In addition, the Court of  Appeal has  in several decisions that that in assessment of  damages, it must be  borne in mind that  each case depends on its own facts; that no two cases are  exactly the same or alike, and that  awards of damages  should not b4e  excessive ( see Jabane v Olenja ; (1986) KLR  1.  In Mohamed  Juma vs Kenya Glass  Works Ltd, CA  1 of 1986 ( un reported) Madan JA  aptly  observed that  an award of general  damages  should not be miserly, it  should not be extravagant, it should  be realistic  and satisfactory and  therefore  it must be a  reasonable  award.  In the same decision the Learned Judge of Appeal addressed an argument tying the quantum of damages to an appellant’s station in life thus:

“It is not always altogether that general damages should be assessed in relation to the station in life of a victim.  There must be some general considerations of human feelings.  The pain and anguish caused by an injury and resulting frustrations are felt in the same way by the poor, the not so rich and the rich.  Again inflation is also no respecter of persons.”

Damages are also not intended to enrich the victim but to compensate them for the injury suffered and as much as possible  to restore them to the position they were in before suffering the injury.  Past awards  always guide  the  award to be made, considering each case  on its merit and peculiar  circumstances  where past awards are taken into account, their age  and rate of  inflation and  strength  of the Kenyan shilling  when  he said awards  were made and  the time  when the intended  award  is of paramount  consideration.

In Johnstone  Ochieng v CC Ltd CA  309/98 Rimiita  J awarded the plaintiff kshs  80,000/- for  injuries that  included  bruises on the face, soft tissue  injuries  to the right  leg: and soft  tissue injury  to the chest.

In the instant case, taking into account the fact of the age when the Johnstone Ochieng case was decided and rate of inflation, I award the plaintiff Kshs 200,000/- general damages for pain and suffering.  The plaintiff’s counsel nonetheless did not provide the court with any authorities for an award for personal injuries sustained by the plaintiff.

The plaintiff  is also entitled  to the costs of the suit and  interest  at  court rates s  from date of this judgment  until payment in full.

Summary

Defendant is found vicariously liable for the wrongful acts of the police officers.

Plaintiff is awarded  damages as  follows:

General damages for  pain and suffering kshs 200,000;

Damages for  unlawful and false  imprisonment  kshs 400,000 ;

Aggravated  damages kshs 300,000/-

c) Costs of the suit

d) Interest on a, b, and c at court rates   from date of this judgment until payment in full.

Dated, signed and delivered in open court at Nairobi this 14th day of July 2015.

R.E. ABURILI

JUDGE

14. 7.15

Coram: R.E Aburili J

CA:  Samuel

Mr Jele  holding brief Mwangi Chege for plaintiff.

No appearance for defendant

COURT-  Judgment  read and delivered  in open court  as scheduled   at 3. 00pm.

R.E. ABURILI

JUDGE

COURT- the judgment to be typed   certified and supplied to the parties upon payment of requisite court fees.

R.E. ABURILI

JUDGE

14/7/2015