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.
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.
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.
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.
Mputhia is a partner with Muthoga Gaturu. [email protected]