Wakilii

Agaba Kenneth v Attorney General and 3 Others (Civil Suit No. 247 of 2016)

High Court · [2019] UGHCCD 293 · 2019 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for unlawful arrest, detention, torture, and damages
Decision
Plaintiff awarded damages, declaratory relief, interest and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the plaintiff's arrest and detention without charge for nine months violated Article 23 of the Constitution, and that the torture inflicted by police officers breached the non-derogable right under Article 24. The state is vicariously liable and the individual officers are personally liable under the Human Rights (Enforcement) Act 2019. The plaintiff was awarded UGX 115,000,000 in total damages plus interest and costs.

Outcome

Plaintiff awarded damages, declaratory relief, interest and costs

Facts

In August 2015, the plaintiff was arrested by police officers from Kawempe Police Station on suspicion of being in the company of an alleged murderer. While in custody, he was severely beaten under the watch of ASP Pahani, sustaining multiple injuries including fractured limbs, wounds on knees and elbows, ruptured muscles, and joint swelling resulting in 75% permanent incapacitation. The plaintiff was not informed of the reasons for his arrest or the particulars of any offence. He was later transferred to Rukungiri Police Station and released without charge after nine months in detention. The plaintiff sought medical treatment and continued to require hospital review. The defendants filed a defence denying liability but presented no witnesses at trial.

Issues

  1. Whether the plaintiff was unlawfully arrested and detained?
  2. Whether the plaintiff was tortured and battered by the 2nd, 3rd and 4th defendants?
  3. Whether the 1st defendant is vicariously responsible for the actions of the 2nd, 3rd and 4th defendants?
  4. Whether the plaintiff is entitled to the reliefs sought?

Orders

  • Declaration that the defendants' actions to torture the plaintiff were unlawful.
  • Declaration that the arrest and detention of the plaintiff were unlawful.
  • Award of UGX 10,000,000 as special damages for medical expenses.
  • Award of UGX 90,000,000 for illegal detention and incommunicado detention.
  • Award of UGX 15,000,000 as punitive damages for gross violation of human rights.
  • Attorney General to pay 50% of the total award.
  • The 2nd, 3rd and 4th defendants to pay 50% of the total award.
  • Interest at 15% per annum from date of judgment until payment in full.
  • Costs of the suit awarded to the plaintiff.

Rules and key headnotes

Constitutional Law — Right to Personal Liberty — Unlawful Arrest and Detention — Failure to Inform Arrested Person of Reasons
A person arrested and detained has a right to know the reasons for detention immediately at the time of arrest, and the person effecting arrest must explain the reasons in clear and simple language. Where a person is never charged before any court coupled with failure to give reasons for arrest, the arrest is wrongful, unjustified and arbitrary.
Constitutional Law — Right to Personal Liberty — Detention Beyond 48 Hours — Article 23(4)(b) Constitution
Article 23(4)(b) of the Constitution guarantees that a person detained or restricted on suspicion of having committed an offence must be taken to court not later than 48 hours. Detention beyond this period without charge violates the constitutional right to personal liberty under Article 23.
Human Rights — Freedom from Torture — Non-Derogable Right — Article 24 and Article 44(a) Constitution
Freedom from torture is a non-derogable right under Article 44(a) of the Constitution which is absolutely guaranteed and cannot be justified under any circumstances. Torture includes any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted for purposes including obtaining information, punishment, or intimidation.
Human Rights — Torture — Incommunicado Detention as Form of Torture
Holding an individual incommunicado without permitting contact with family and refusing to inform the family if and where the individual is being held constitutes inhuman treatment of both the detainee and the family, amounting to torture under international human rights law.
Constitutional Law — Remedies for Rights Violations — Article 50(1) — Right to Full Redress
Article 50(1) of the Constitution enjoins the court to give effective redress for breach of constitutional rights, which may include compensation. A person who claims and proves that his fundamental right has been violated is entitled to full relief as of right, not as a matter of discretion.
Administrative Law — Vicarious Liability and Personal Liability — Human Rights (Enforcement) Act 2019 s.10
Section 10 of the Human Rights (Enforcement) Act 2019 provides that a public officer who individually or in association with others violates a person's rights shall be held personally liable notwithstanding the state being vicariously liable. The officer must pay a portion of compensation as determined by the court.
Damages — Constitutional Rights Violations — Assessment of Quantum — Compensatory, Deterrent and Punitive Purposes
Awards of damages in constitutional matters should not be limited to simple compensation but should in proper cases be made with a view to deterring repetition of breach, punishing those responsible, or securing effective policing of constitutionally enshrined rights. Assessment of damages for non-pecuniary loss such as torture is essentially a matter of impression based on factors including injury, loss of dignity, mental suffering, distress and humiliation.

Legislation cited (16)

Cases cited (11)

  • Issa Wazembe v Attorney General (High Court Civil Suit No. 154 of 2016)
  • Gregory Kafuuzi v Attorney General [2000] KALR 743
  • Lutaaya v Attorney General (High Court Civil Suit No. 461 of 1989)
  • Tims v John Lewis & Co [1951] 2 KB 459
  • Fernandes v Commercial Bank of Africa Ltd and Another [1969] EA 482
  • Hon Sam Kuteesa and 2 Others v Attorney General (Constitutional Reference No. 54 of 2011)
  • Ireland v United Kingdom ECHR Application No. 5310/71
  • Osotraco Ltd v Attorney General (High Court Civil Suit No. 1380 of 1986) [2002] KALR 519
  • Jasper Natukunda v Attorney General and Another (High Court Civil Suit No. 1 of 2014)
  • Cassell v Broome [1972] 1 All ER 801
  • Jennifer Muthoni and 10 Others v Attorney General of Kenya [2012] eKLR

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Agaba Kenneth v Attorney General and 3 Others (Civil Suit No. 247 of 2016) [2019] UGHCCD 293 (20 December 2019)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.