George Gakono Gathomi was assaulted and tortured by two police officers, at the behest of the Water Irrigation Board allegedly for an unpaid water bill (not a crime!). He was later falsely charged with assault in a scheme to enable police to escape liability for their failure to investigate and charge police officers involved. 

He was awarded Sh500,000 this year for violation of his rights under Articles 28 (dignity), 29 (security) and 47 (administrative justice). A group of people making a film were awarded Sh500,000 each for violation of their rights including Articles  28,  29,  31  (privacy),  40 (property), 49 and 50 (fair criminal justice). They had been harassed by the police, arrested and charged with a non-existent offence, detained for three days. One was also awarded Sh300,000 for pain and suffering as the treatment fractured his jaw, and Sh1,000,000 because the treatment also led to his losing a contract.

Hon Erick Okong’o Mogeni and his wife, Justice Jacqueline Mogeni, sued for defamation, including the statement “Lawmaker pushes wife’s hiring as judge”. Between them, they were awarded Sh6,500,000 in damages. “Nelson Havi set for Sh5m payout over illegal arrest” – Daily Nation. The High Court recently ordered certain officers to ensure that Havi gets the Sh5 million he was awarded in 2023. That award was because he was arrested by police while appearing, remotely, in court.

The court held that his rights under Articles 27 (equality), 28, 29, 31, 47 and 49 were violated. For some time, he was not told why he was detained. It was clear that there was no foundation for the arrest, and it was connected to some issue in the Law Society of Kenya.

REACTIONS?
I imagine people might think things like:  why  do  people  get  so  much more as damages for supposed injury to their reputations than for physical injury?

And:  is  it  that  “big  people”  get much more than ordinary citizens for similar wrongs done to them? So noticeable comparing the Havi and Gathomi cases.

Further: who pays when damages are awarded against government or certain government offices?

THE CONSTITUTION
The Constitution has far more detail about criminal trials than it does about civil cases like the ones above. But there are provisions that have some relevance, even if not expressly. Article 10 emphasises – as national values – human dignity, equity, equality, inclusiveness, and non-discrimination. And Article 27 is specifically about equality, including having “equal benefit of the law”.

Yet these practices on award of civil damages convey messages suggesting that some people are less important than others, and their feelings matter less. And when we are thinking about defamation, constitutional freedoms of expression and media are obviously relevant. Kenyan newspapers have been burdened with some very heavy damages awards or settlement agreements.

DAMAGES
The purpose of damages in a civil case is not (or is very rarely) to punish the person responsible; it is to compensate the person who suffered a wrong. If it is a matter of medical consequences, or damage to property or loss of a job, the matter is not so difficult – the issues are practical: proving the loss. But the issues of pain and suffering as a result of injury, or the effect of damage to a reputation, are much more difficult.

Reputation is particularly difficult. It is not necessary to prove that a reputation actually has been lowered because of a defamatory statement. If  the  court  thinks  reasonable  members of society would think less of a person because of what has been said or written about them, that’s enough.

The  actual  amount  will  often  follow earlier cases, in which “the status of a particular person affects the extent of the injury suffered” is a common principle.

If the behaviour of the responsible person was particularly serious, for example deliberate rather than negligent, increasing the sense of pain of the victim, the damages may be increased (aggravated). And if it is really  bad  extra  damages  may  be  awarded to punish the wrong-doer
(punitive).

SOME SUGGESTIONS
I would like to see the courts move away from so much emphasis on money except where the damage has been clearly measurable in money terms. I am not saying there should be no compensation for effects that have no financial measure. Clearly, for pain and suffering resulting from negligence or deliberate behaviour including torture should be compensated. We are parties to the torture convention that requires compensation for victims.

If the type of loss really cannot be measured in monetary terms then the courts should not be awarding large sums of money. It makes little sense. How does money help a person whose feelings have been hurt, however seriously? The error is to view the amount of compensation as the measure of vindication.

I suggest that the real vindication is having the court say clearly in a fully reasoned way that the other side was in the wrong. The court will usually order the offender to pay the claimant’s legal costs in bringing the case – probably a sizeable sum, itself a deterrent to future similar behaviour. Of course, sometimes the loss to a wealthier person may really be greater.

Being unable to work for some time may lose them much more money than a poor person, or having heir car damaged in an accident is a greater loss than the poor man’s bicycle destroyed. But emotional loss should not vary by class or status in society or wealth, nor should pain and suffering from an injury, nor being detained by the police.

Compensation  for  pure  loss  of  reputation should be much smaller, and thus discrepancies between claimants much less. Damages should hardly ever be used to punish. In Nelson Havi’s case the judge was (rightly) angered by the behaviour of the police and the size of the damages he awarded, I suspect, was designed to punish, or at least to reflect that anger. But no individual could be punished – because no individual (as opposed to office) had been named as a party.

In Gathomi’s case individual officers had been named. Punitive damages (intended to punish or deter future wrong behaviour) are problematic  –  they award the claimant more than he or she has suffered.

My suggestion here is based on an English case often cited in Kenyan courts. Such damages should
be awarded only against a person making money out of committing the wrong, or if they were a public official abusing their office (and, in my view, only if the public official is to pay personally).

Kenyan courts, I suggest, much too readily award extra damages (“aggravated”) and punitive damages – often in the same case. Some judges have expressed concern about heavy damages paid by taxpayers. I suggest that no extra damages as punishment should ever be awarded against government – unless government was making money out of the mistreatment. You can’t punish the government.

There is no such thing as government money – it is all the people’s money. Nor do I believe that awarding damages against government will deter future government misbehaviour. Our public officers just don’t seem to care about the misuse of public money. Courts need particularly to break free from the idea that people in prominent positions should get more compensation.

Why should Nelson Havi have got more damages than any other person wrongly arrested and detained for the same time in similar conditions? If this discouraged people from suing, so be it. Financial gain (beyond genuine reparation for measurable loss) should not be the motive for suing. If the money factor was much less, the inequalities and inequities – with the associated impairment of dignity – would be much reduced, in accordance with the Constitution.

I doubt if this will happen – who would raise it before the courts?

This article was first published by the Star Newspaper.

Image: Jack Owuor