By CATHY MPUTHIA
In Summary
- The most important requirement in being awarded exemplary damages is that the defendant’s actions were so outrageous that they warrant punishment.
A friend contacted me over a matter that had caused
her great distress. She confided that a group known to her had been
spreading falsehoods about her.
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One member even published a malicious write-up about her.
When I asked what she would do about the issue, she said she would
forgive and forget. I advised her to file a suit against the people
concerned and seek exemplary damages.
Exemplary damages are awarded to an aggrieved
person to compensate them for harm done by another person. They are also
meant to punish the wrong-doer.
Outrageous actions
One does not need to have lost anything financially
to sue. The most important requirement in being awarded exemplary
damages is that the defendant’s actions were so outrageous that they
warrant punishment.
The plaintiff has to show that the defendant acted
with malice and cruelty and that the actions caused the plaintiff
sufficient damage. The most common cases where exemplary damages are
awarded are in employment disputes.
Bosses may act maliciously when terminating one’s employment.
Claims for exemplary damages are often made in
defamation cases and sometimes in divorce cases, too. Divorce cases are
often nasty and a lot of malice can be meted out by one party against
another.
The damages are supposed to compensate the
plaintiff for the wrong done and also to punish the defendant. Little
wonder they are also referred to as vindictive or punitive damages.
However, a court may reduce the amount of damages
awarded if during the proceedings the defendant offers an apology or
redresses the distress caused to the plaintiff. In the case of Emanuel
Omenda versus Safaricom Limited, the plaintiff sued the firm claiming
damages for defamation and exemplary damages.
Mr Omenda, a procurement officer, was a frequent
shopper at the Village Market in Nairobi where Safaricom has a phones
shop. Mr Omenda had gone to buy a phone and was detained for two hours
and frog-marched to a police station on suspicion of stealing a credit
card.
Acted maliciously
The court awarded him exemplary damages stating that the defendant had acted maliciously.
Businesses must learn from this case and train
their staff on how to handle customers. If the plaintiff had been
treated cordially, the claim for exemplary damages would not have held
water.
There are many case laws in Kenya against businesses on the issue of defamation and exemplary damages claims by staff members
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