Rules of the Tort
1.
There must be some apprehension of contact
2.
There must be a means of carrying out the threat by the
defendant
3.
The tort is actionable per se.
4.
The tort is generally associated with battery
5.
Mere words without body movement do not constitute
assault.
Assault under Kenya law is constituted by:-
i.
A display or show of force
ii.
Pointing of a loaded gun
iii.
Cursing in a threatening manner
B) BATTERY
This is defined under Kenya law as the the intentional and direct application of force to
another person. It has been defined as any act of the defendant which directly
and either intentionally or negligently causes some physical contact with the
person or body of the plaintiff without his consent.
As a general rule battery is based on an intentional act
and is both a crime and a tort.
Meaning of Force
This is defined under Kenya law as any physical contact with the body of the plaintiff or
with his clothing is sufficient to amount to force. There is battery where the
defendant shoots the plaintiff from a distance just as much as when he strikes
him with his fist. Mere passive obstruction is however not battery.
In the technical sense however, no physical hurt is
necessary, for all forms of trespass are actionable per se i.e. without prove of damage.
Where there is express or implied consent to contact the
plaintiff can’t sue. Life would be difficult if all bodily contact was
actionable and courts have struggled to find some further ingredient to
distinguish battery from legally unobjectionable conduct.
In Collins v.
Wilcock (1984) Goff L J stated
that apart from specific defenses such as lawful authority in effecting an
arrest or prevention of crime, bodily contact was not actionable if it was
generally acceptable in the ordinary conduct of daily life.
However, the court of appeal in Wilson v. Prigle while not
wholly rejecting this approach has laid down that battery involves a ‘hostile’
touching by the defendant i.e. where he willfully interferes with the plaintiff
inn a way to which he is known to object.
Touching another person in the course of a conversation in
or to draw his attention to something is not battery but ‘an unwanted kiss is
as much actionable as a blow’. (Per Lord Holt C J) in Cole Turner 1704
For battery there must be a voluntary act by the defendant
intended to bring about the contact with the plaintiff. The battery need not be
committed with the person of the person of the defendant.
It is battery to strike the plaintiff by throwing a stone
at him. Provided the force used has its effect on the person of the plaintiff’s
person must be intended by the defendant e.g. it is battery to remove a chair
on which the plaintiff is about to sit as a result of which he falls on the
ground.
In Fagan v. Metropolitan
Commissioner of Police (1969), the
defendant accidentally drove his car on the foot of a police constable. He then
delayed in reversing the car thus preventing the constable from escaping and
knowing that the constable’s foot was trapped. It was held that he was liable
for criminal assault
Where however words take a form of a continuing threat
e.g. your money or your life, this seemingly constitutes an assault.
In Police v. Greaves,
the defendant’s threat of committing a knife attack on certain policemen if
they should uproot a plot near him or did not leave his premises immediately
was held to be assault.
INTENTION
Assault under Kenya law is committed where the plaintiff apprehends the
commission of a battery on his person. If the defendant does not intent to
commit a battery but induced a belief in the plaintiffs mind that he is about
to do so, he is nevertheless liable for assault.
Pointing a loaded gun at a person is of course an assault
but if the gun is unloaded it is still assault unless the person at whom it is
pointed knows this.
APPREHENSION
Suppose the plaintiff is an unusually fearful person in
whom the defendant can induce the fear of an imminent battery though a
reasonable man would not have fear in those circumstances, does the defendant
commit assault?
The better view is that the test is based upon the
subjective intention of both parties thus there is battery if the defendant
intends to create fear of commission of a battery whether or not he knows the
plaintiff to be a fearful person and the plaintiff actually has this fear.
In Smith vs.
Superintendent of Working Police Station (1983), the defendant was convicted of criminal assault when he entered
the grounds of a private house and stood at the window seriously frightening
its occupant who was getting ready for bed.
The plaintiff must however apprehend a battery thus it is
not assault to stand still at the door of a room barring the plaintiff’s entry.
It would also not be assault to falsely cry ‘fire’ in a crowded place.
MUST DAMAGES BE PROVED?
Both torts of assault and battery are actionable per se under Kenya law. Where the defendants act has
caused no damage the courts may award only nominal damage but the court may
also award aggravated damages because of the injury to the feelings of the
plaintiff arising from the circumstances of the commission of the tort.
RULES OF BATTERY UNDER KENYA LAW
1.
Absence of the plaintiff’s consent
2.
The act is based on an act of the defendant mere
obstruction is not battery
3.
A contact caused by an accident over which the
defendant has no control is not battery
4.
There must be contact with the person of the plaintiff
it has been observed The least touching of another person in anger is battery
5.
Battery must be direct and the conduct must follow from
the defendant’s act
6.
The tort is actionable per se. The essence of battery is to protect a person from
un-permitted contacts with his body. The principal remedy is monetary award in
damages.
FALSE IMPRISONMENT
This is defined under Kenya laws as the infliction of bodily restraint which is not
expressly authorized by law. It’s an act which is directly and either intentionally
or negligently causes the confinement of the plaintiff within an area limited
by the defendant.
This tort under Kenya law protects a person’s freedom by making unlawful
confinement actionable.
It is possible to commit the tort without imprisonment of
a person in the common acceptance of the tort. In fact neither physical conduct
nor anything resembling prison is necessary.
If a lecturer locks his students in a lecture room after
the usual time of dismissal that is false imprisonment. So also is the case
where a person is restrained from leaving his own house or part of it or even
forcibly detained in a public street. A person is said to be a prisoner if he
has no liberty to go freely at all times to all places that he would like to
go.
It has been held in Grainger
v. Hill that imprisonment is possible even if the plaintiff is too ill to
move in the absence of restraint.
MAIN INGREDIENTS OF THE TORT
(a) Knowledge of the plaintiff
Under Kenya laws, knowledge of the restraint is not necessary but may affect
the quantum of damages. In Meeting v. Graham White Aviation Co the plaintiff was being
questioned at the defendants company in connection with certain thefts from the
defendants company. He did not know of the presence of two works police outside
the room who would have prevented his leaving if necessary.
Held; the
defendant was liable for false imprisonment. Arcing L J said
“it appears to me that a person can be
imprisoned without his knowing. I think a person can be imprisoned while he is
asleep or in a state of drunkenness, while unconscious or while he is a
lunatic. Of course the damages might be diminished and would be affected by the
question whether he was conscious or not’
(b) Intention and directness
The tort under Kenya law is defined to exclude negligent imprisonment of
another person. The tort must be intentional and should be committed directly.
Where for reason of lack of intention or directness the plaintiff cannot
establish false imprisonment an action in negligence may still be available.
In Sayers v. Badour U.D.C the
plaintiff became imprisoned inside the defendant’s toilet because of negligent
maintenance of the door lock by the defendant’s servants. In trying to climb
out of the toilet she fell and was injured. She recovered damages from the
defendant because it was a reasonable act on her part to escape from a
situation in which the defendant by his negligence had placed her.
An action for false imprisonment would not have been
available because there was no direct act of imprisonment.
(c) The restraint must be complete
Under Kenya laws, there must be a total restraint placed upon the
plaintiff’s freedom of action. In Bird v Jones the defendant closed
off the public footpath over one side of a bridge. The plaintiff wishing to use
the footpath was prevented by the defendant. In the plaintiffs action one of
the questions that was necessary to decide was whether the defendant’s act
amounted to false imprisonment.
Held: It did
not since the defendant has not placed a total restraint on the plaintiff. The
blocking of a part of a public highway might be a public nuisance for which the
plaintiff could bring an action in tort if he could show special damage arising
from. Provided
the area of restraint is total it does not seem to matter that it is very
large.
There has been a difference of opinion between the court
of appeal and the lower court the circumstances in which a person already the
lawfully imprisoned in a prison may be regarded as falsely imprisoned.
In R v. Deputy Governor of Prison,
there was an agreement that imprisonment under intolerable conditions would
amount to false imprisonment. The C.O.A however required knowledge of those
conditions by the defendant but the lower courts thought that a defense would
exist here under the provisions of the prisons Act.
There is of course false imprisonment where a prisoner is
detained beyond the legal date of his release. (Cowell v. Corrective
Services Commissioner)
RULES OF THE TORT UNDER KENYA LAW
1.
The tort must be intentional
2.
It is immaterial that the defendant acted maliciously
3.
The restraint or confinement must be total. However, it
need not take place in an enclosed environment
4.
It has been observed every confinement of a person is
an imprisonment whether it be in a common prison, private house or in the
stocks or even forcibly detaining one in the public
5.
The boundary of the area of confinement is fixed by the
defendant. The barriers need not be physical. A restraint affected by the
assertion of authority is sufficient.
6.
The imprisonment must be direct and the plaintiff need
not have been aware of the restraint
7.
The tort is actionable per se.
8.
The principal remedy is a monetary award in damages.