[2022] KEHC 15489 (KLR)

Barclays Bank (K) Ltd v Ojwang & 2 others (Civil Appeal 10 of 2020) [2022] KEHC 15489 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15489 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 10 of 2020

RE Aburili, J

November 15, 2022

Between

Barclays Bank (K) Ltd

Appellant

and

Joseph Obote Ojwang

1st Respondent

Inspector General of Police

2nd Respondent

Attorney General

3rd Respondent

(An appeal arising out of the Judgement and Decree of the Honourable Beryl Omollo in the Chief Magistrate’s Court at Kisumu delivered on the 18th December 2019 in Kisumu CMCC No. 600 of 2017)

Judgment

Introduction 1. The 1st respondent Joseph Obote Ojwang by way of amended plaint dated 30th August 2018 sought general and exemplary damages for false imprisonment, malicious prosecution and unlawful confinement, general damages for defamation of character as well as special damages of Kshs. 90,000 and costs of the suit against the appellant Barclays Bank (K) Ltd & others.

2. It was the 1st respondent’s case before the trial court that the appellant herein and its co-defendants caused his arrest and imprisonment without probable cause that led to an injury to his character and reputation and subjected him ridicule and psychological torture.

3. In her judgement, the trial magistrate found in favour of the 1st respondent and awarded him damages in the sum of Kshs. 300,000 for false imprisonment, Kshs. 100,000 for defamation of character and Kshs. 300,000 as exemplary damages.

4. Aggrieved by the said judgment and award, the appellant preferred this appeal vide a memorandum of appeal dated 12th February 2020 raising the following grounds:a.The learned trial magistrate erred in law and in fact in finding that the respondent had proved malicious prosecution when the respondent did not prove malice, spite or ill will on the part of the appellant or collusion between the appellant and the other defendants in the suit before her. The tort of malicious prosecution was not proved, the acquittal of the respondent notwithstanding, and the evidence demonstrated that the appellant was entitled to act as it did.b.The learned magistrate erred in law and in fact in making a finding that the respondent had been defamed when claim had not been pleaded as required by law and when there was no evidence that the appellant had uttered and published the words alleged to have injured the respondent’s reputation.c.The learned magistrate erred in law in holding that the respondent was entitled to exemplary damages when no evidence was led to prove that the appellant’s conduct in the way it handled the matter or treated the respondent entitled the respondent to an award of exemplary damages.d.The learned magistrate erred in law when she shifted the burden of proof in civil proceedings from a plaintiff to a defendant thus arriving at a wrong conclusion.e.The learned magistrate erred in law and in fact in considering, as part of the respondent’s evidence the proceedings in Criminal Case No. 205 of 2017 as part of the respondent’s evidence when the same was attached to the respondent’s final submissions thereby denying the appellant opportunity to cross-examine the respondent on the same thus limiting the appellant’s right to a fair hearing.

5. The parties canvassed this appeal by way of written submissions.

The Appellant’s Submissions 6. It was submitted by the appellant’s counsel that there was no evidence adduced by the 1st respondent of any form of influence, control or direction, exercised unduly or otherwise by the appellant over the decision by the 2nd and 3rd respondents to institute investigations, or institute criminal charges in court against the 1st respondent save for the fact that the appellant simply made a report of the alleged theft. Reliance was placed on the case of Joseph Wamoto Karani v C Dorman Limited & Another [2018] eKLR.

7. The appellant further submitted that there was no malice on its part in making a report to the police of the alleged theft as the report made was based on an incident that occurred in 1992 which the 1st respondent admitted in his testimony to not knowing if it occurred as a result of his mental state.

8. The appellant further submitted that in finding that the 1st respondent was falsely imprisoned, the trial court considered evidence adduced in the 1st respondent’s submissions which was prejudicial to the appellant as they were denied an opportunity to examine the said evidence given that the same was introduced after the parties had closed their cases and further that the copy of submissions served on the appellant did not contain the said evidence.

9. It was further submitted that the appellant could not be held liable for the tort of false imprisonment as the 1st respondent had not adduced any evidence in support of his case as was held in the case of Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLR where the court set out the ingredients that a party must fulfil to prove a claim of false imprisonment specifically: unlawful arrest of another, against their will and without justification.

10. It was further submitted that if indeed the 1st respondent was falsely imprisoned, then the appellant was not liable for it as the detention was within the powers of the criminal court, pending the provision of bail or bond and that the court was discharging its constitutional powers as was held in the case of Jackson Muthui Maluki & Another v Attorney General [2020] eKLR and that the 1st respondent had failed to prove fraud, bribery or collusion on the appellant’s part.

11. The appellant’s counsel further submitted that the 1st respondent’s claim for defamation of character was erroneous as there was no publication of any defamatory material that would injure the 1st respondent’s reputation as alleged and thus the award of Kshs. 100,000 in damages was not supported by evidence.

The 1st Respondent’s Submissions 12. The 1st respondent submitted and relied on the case of Chrispine Otieno Caleb v Attorney General [2014] eKLR that set out the ingredients to be proved to sustain a claim for damages for malicious prosecution and submitted that he proved the tort of malicious prosecution on the part of the appellant as he was firstly the complainant in the criminal case against him, and secondly as the appellant and the 2nd and 3rd respondents demonstrated their spite and ill will towards the 1st respondent in their conduct in failing to avail themselves before the trial court leading to the case being dismissed due to unavailability of witnesses.

13. The 1st respondent further submitted that the appellant and the 2nd respondent acted without reasonable/probable cause as they failed to carry out independent investigations before preferring criminal charges against him and further that there was no explanation as to why the prosecution could not trace or avail its witnesses in the case against the 1st respondent.

14. As to whether the 1st respondent was defamed, it was submitted that the appellant through the witness statement dated 10/6/2017 made by one Vaslas Odhiambo, made several false and baseless allegations to the effect that the 1st respondent stole Kshs. 109,658. 75, allegations that were not proved in court and thus remained a taint on the 1st respondent’s image. The 1st respondent relied on the case of Rodger Abisai v Waruru Wachira & Another [2003] CA at Kisumu where the court held that imputation of corruption by the defendants deprived them of the defence of fair comment.

15. It was submitted that the 1st respondent demonstrated to the trial court through several documents how his arrest and prosecution affected his career. It was further submitted that the 1st respondent’s arrest by the 2nd respondent at his workplace in front of his colleagues and pupils and parents exposed him to untold humiliation and mental anguish. Reliance was further placed on the case of Standard Media v Kagia & Co. Advocates where the court held that where the author or publisher was reckless or negligent, such factors should be considered in assessing the level of damages.

16. On exemplary damages, it was submitted that the 1st respondent was falsely accused on a matter that ought not to have been prosecuted as there was no evidence adduced to corroborate the alleged accusations thus providing evidence of malice and ill motive on the part of the prosecution.

Analysis and Determination 17. This being a first appeal, this court is under a duty to examine matters of both law and facts and subject the whole of the evidence to afresh and exhaustive scrutiny, drawing a conclusion from that analysis bearing in mind that this court did not have an opportunity to hear the witnesses first hand and test the veracity of their evidence and demeanor. This is captured by section 78 of the Civil Procedure Act, Cap 21, Laws of Kenya, which espouses the role of a first appellate court as to ‘…… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.’ The principles were buttressed by the Court of Appeal in the case of Peter M. Kariuki v Attorney-General [2014] eKLR where court stated that:“We have also, as we are duty bound to do as a first appellate court, reconsider the evidence adduced before the trial court and revaluated it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence. See Ngui v Republic, (1984) KLR 729 and Susan Munyi v Keshar Shiani, Civil Appeal No. 38 of 2002 (unreported).”

18. Having considered the evidence adduced before the trial court and the grounds of appeal as submitted on by counsel for the Appellants, I find the issues to be determined in this appeal are:a.Whether the 1st respondent proved its claim of unlawful arrest/false imprisonment and malicious prosecutionb.Whether the 1st respondent was entitled to exemplary damagesc.Whether the 1st respondent’s character was defamed

19. The burden of proof in civil cases is on he who alleges and on the balance of probability. In the case of Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR it was stated that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other.

Whether the 1st respondent proved its claim of unlawful arrest/false imprisonment and malicious prosecution 20. The question to be resolve din this issue whether the elements necessary to sustain a claim for unlawful arrest, false detention and malicious prosecution have been established on a balance of probabilities. In Sylvanus Okiya Ongoro v Director of Criminal Investigations & 4 others [2020] eKLR, the court stated as follows:“103. What I gather the petitioner to be complaining about is that his prosecution was malicious as it was unjustified.104. The principles governing a claim founded on malicious prosecution were laid down by Cotran, J in Murunga vs. Attorney General (1979) KLR, 138 as follows: -(a)The Plaintiff must show that the prosecution was instituted by the Defendant, or by someone for whose acts he is responsible;(b)The Plaintiff must show that the prosecution terminated in his favour;(c)The Plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause;(d)He must also show that the prosecution was actuated by malice.”

21. The above elements were summarized by the East Africa Court of Appeal in Mbowa v East Mengo Adminstration [1972] EA 352 as follows:“The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action.”

22. Accordingly, a party who claims that he was unlawfully arrested, falsely imprisoned and or maliciously prosecuted, bears the responsibility of proving that the arrest had no basis in law at all. It will not be enough for him to merely state that the arrest was unlawful. Similarly, an acquittal alone cannot amount to proof of malice. There must be something more than just acquittal. In the case of Nzoia Sugar Company Limited v Fungutuli [1988] eKLR, the Court of Appeal observed;“It is trite learning that acquittal, per se, on a criminal case charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant. But there must be evidence of spite in one of its servants that can be attributed to the company.”

23. From the above decisions, it is clear that for 1st respondent’s claim to succeed, he had to prove that there was malice on the part of the appellant and the 2nd and 3rd respondents.

The evidence on record is as follows: 24. The 1st respondent herein was arrested on the 22/3/2017 at Golden Elite School while teaching his students, an arrest that was occasioned by a report made by the appellant to the effect that the 1st respondent had stolen Kshs. 1,130,806 in the year 1992.

25. The 1st respondent was taken to court a day later on the 23/3/2017 where he pleaded not guilty and on the 28/3/2017, he was released on bond. It was the 1st respondent’s case that as a result of the arrest, he lost his employment at Golden Elite School and his son dropped out of school due to lack of school fees.

26. The 1st respondent further averred that the case against him was dismissed because the appellant did not have any evidence against him. He further stated that he was informed that a letter addressed to him had been left at his previous school, Golden Elite.

27. In defence, the appellant called one witness Vaslas Odhiambo, DW1 who testified that the 1st respondent was the appellant’s employee as a cashier between 1986 and 1992 and that sometime on the 25th March 1992, the 1st respondent while working at the appellant’s Nakuru West branch, stole Kshs. 1,096,598. 75 and disappeared to Uganda.

28. The appellant’s witness further stated that they only got wind of the 1st respondent’s return to Kisumu in 2017 and proceeded to report the matter as there is no time limitation for prosecution of criminal matters.

29. It was further averred by the appellant that the 2nd respondent made the decision to arrest and charge the 1st respondent independently and did not collude with the appellant and the 2nd and 3rd respondents.

30. In her judgement, the trial court found that the 1st respondent had proved his claim on a balance of probabilities and was thus entitled to an award of damages for unlawful arrest/false imprisonment, malicious prosecution and injury to his reputation.

31. The question is whether the 1st respondent proved that the police investigations and his subsequent prosecution was accentuated by malice.

32. The evidence adduced was undeniable that the 1st respondent was an employee of the appellant from 1986 and 1992 and that sometime on the 25th March 1992, money in the sum of Kshs. 1,096,598. 75 was stolen by the 1st respondent from the appellant whilst the 1st respondent was working at the appellant’s Nakuru West branch, after which the 1st respondent disappeared.

33. The appellant’s allegation that the 1st respondent disappeared from work after the loss of the money which was in custody of the 1st respondent who was the cashier at the appellant’s Nakuru Branch and that the theft was reported to the then CID in March 1993, who tried to trace the 1st respondent in vain were not controverted.

34. The appellant further pleaded that it made another report to the DCI in 2017 after receiving information that the 1st respondent was in Kisumu and this evidence was again not controverted by the 1st respondent in his evidence.

35. The 1st respondent did not deny that he worked for the appellant during the time the money is said to have been stolen and a report made to the police for investigations, or that he vanished after the said money was allegedly stolen. In my view, 1st respondent failed to prove his claims before the court, which claims were rebutted by the evidence tendered by the appellant.

36. The 1st respondent further averred that his ‘acquittal’ under section 87 (a) of the Criminal Procedure Code was further evidence that he was exposed to malicious prosecution.

37. It is trite that acquittal, per se, on a criminal charge is not a sufficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved against the prosecution. There must be evidence of spite. In the case of Jediel Nyaga v Silas Mucheke 1987 (CA No. 59 of 1987) the Court of Appeal stated that:“The appellant having reported to the police about the respondent’s action of damaging his crops, the police took over the matter to investigate the respondent for a possible offence … Once the appellant gave the report, he ceased to have anything to do with the matter.”

38. And in the case of Robert Okeri Ombaka v Central Bank of Kenya [2015]) eKLR, the Court of Appeal observed that:“In this appeal, there is no evidence that the respondent made a “false” report or that the it was actuated by “malice”, or that his prosecution was brought “without reasonable or probable cause”. That a suspect was acquitted of a criminal case is not a ground for filling a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”

39. From the evidence adduced and reassessed herein, it is clear that the 1st respondent’s arrest was instigated by a complaint made by the appellant to the police, which complaint was justified in my view as the monies alleged to have been stolen were from his till and under his control and the 1st respondent failed to offer any explanation as to how the money went missing while he was its custodian.

40. I therefore find that there was probable cause for his arrest and the subsequent prosecution was justified in the absence of proof of malice on the part of the appellant and the 2nd and third respondents herein. Thus, the 1st respondent failed to prove malice in the institution of the case against him. In Gwagilo v Attorney General [2002] 2 EA 381 it was held interalia that malice in the context of malicious prosecution is an intent to use the legal process for some other purpose than its legally appointed and appropriate purpose and the appellant could prove malice by showing for instance that the prosecution did not honestly believe in the case which they were making that there was no evidence at all upon which a reasonable tribunal could convict and that the prosecution was mounted on a wrong motive and show that motive.

41. In the instant case, although the prosecution of the 1st respondent was terminated under section 87(a) of the Criminal Procedure Code, the prosecution explained that they were unable to trace the witnesses. Being unable to trace witnesses is not evidence of malice, considering that the offence of theft allegedly took place in 1992 and it took about fifteen years for the 1st respondent to be traced, I am inclined to believe that witnesses die or even leave their places of abode, they also retire and, in the process, a delayed prosecution can easily collapse on that account.

42. I find that this was the case here and therefore the appellant cannot be blamed for the collapse of the criminal case against the 1st respondent as the 1st respondent caused that delay by avoiding arrest to face justice after the money was reportedly stolen from the custody of the 1st respondent cashier in 1992 until 2017 is when he was traced, arrested and charged by which time, most witnesses were also at large.

43. Based on all the above, I find that the 1st respondent failed to fulfill the essential ingredients to prove the tort of malicious prosecution.

44. The 1st respondent further pleaded that he was falsely arrested and imprisoned. The law concerned with arrest and detention can be found in the Criminal Procedure Code as well as the National Police Service Act. Section 29 of the Criminal Procedure Code provides for an arrest without warrant by a police officer in the following terms:“29. Arrest by police officer without warrantA police officer may, without an order from a magistrate and without a warrant, arrest—(a)any person whom he suspects upon reasonable grounds of having committed a cognizable offence;”

45. Section 36 of the Criminal Procedure Code relates to detention after an arrest without warrant provides that:“36. Detention of persons arrested without warrantWhen a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable:Provided that an officer in charge of a police station may release a person arrested on suspicion on a charge of committing an offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.”

46. Section 58 of the National Police Service Act empowers a police officer power to arrest without warrant in these terms:“58. Power to arrest without a warrantSubject to Article 49 of the Constitution, a police officer may without a warrant, arrest a person—SUBPARA (a)…SUBPARA (b)…(c)whom the police officer suspects on reasonable grounds of having committed a cognizable offence;(d)who commits a breach of the peace in the presence of the police officer;”

47. From the record of appeal herein, the 1st respondent was arrested on the 22/3/2017 and taken to court a day later on the 23/3/2017 where he pleaded not guilty and on the 28/3/2017 he was released on bond.

48. Having laid out the statutory provisions upon which the 1st respondent’s arrest was based, I must now question whether in the circumstances, that arrest was unlawful resulting in false arrest and detention of the 1st respondent. As to what constitutes a false arrest was explained in the case of Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLR where the court held that:“False arrest which is a civil wrong consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another person purporting to act according to the law. The term false arrest is sometimes used interchangeably with the tort of false imprisonment, and a false arrest is one method of committing a false imprisonment. A false arrest must be perpetuated by one who asserts that he or she is acting pursuant to legal authority, whereas a false imprisonment is any unlawful confinement. Thus, where a police officer arrests a person without probable cause or reasonable basis, the officer is said to have committed a tort of false arrest and confinement. Thus, false imprisonment may be defined as an act of the defendant which causes the unlawful confinement of the plaintiff. False imprisonment is an intentional tort.”

49. A determination on whether or not there is false imprisonment is predicated on the circumstances of each case. The learned judge in the case of Daniel Waweru (supra), adopted the holding in Jorgensen v Pennsylvania R.R., 38 N.J Super 317{App. Div. 1955} where it was held that:“The gist of an action for false imprisonment is unlawful detention, without more.”

50. As stated earlier on in this judgment, the evidence adduced before the trial court was that the 1st respondent went missing after monies amounting to Kshs. 1,096,598. 75 went missing from his till leading his employer to make a report to the then CID for investigations. However, the 1st respondent was not traced until 2017 when his employer, the appellant learnt that he had been seen in Kisumu so a report was made to the DCI and the 1st respondent was arrested.

51. The 1st respondent has not shown that his arrest was with malice or unlawful. On the contrary, based on the evidence adduced, I am persuaded that his arrest and 5 days’ confinement, one day prior to taking the plea and after taking the plea, before he was released on bond pending trial was lawful.

52. The 1st respondent further pleaded that as a result of his arrest, his character was greatly injured and reputation was greatly exposed to contempt and ridicule and that he also suffered psychological torture as he suffered economic loss that affected him and his family.

53. The test to determine whether a statement is defamatory is an objective one which depends on what a reasonable person on reading the statement would perceive. Halsbury’s Laws of England 4th Edition Volume 28 states at Page 23 states that:“In deciding whether or not a statement is defamatory, the court must first consider what meaning the words would convey to the ordinary man. Having determined the meaning, the test is whether, under the circumstances in which the words were published, a reasonable man to whom the publication was made would be likely to understand them in a defamatory sense.”

54. The Black’s Law Dictionary, 9th Edition at page 479 defines defamation as:“the act of harming the reputation of another by making a false statement to a third person.”

55. Thus, for a claim of defamation to arise and succeed, there must be a false statement made to a third party leading to the harming of a party’s reputation. The ingredients to sustain a claim of defamation were set out in the case of John Ward v Standard Limited [2006] eKLR where L. A Osiemo J (as he then was) stated that:“A statement is said to be defamatory when it has a tendency to bring a person to hatred, ridicule, or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or calling.The ingredients of defamation are:(i)the statement must be defamatory(ii)the statement must refer to the plaintiff(iii)the statement must be published by the defendant(iv)the statement must be false.”

56. Taking the aforementioned into consideration, it is my view that a person’s arrest cannot be deemed to defame him especially in this case where the arrest was lawful and was carried out within the confines of the law.

57. Consequently, I find that the issue of exemplary damages does not arise.

58. In light of all the above, I find and hold that the 1st respondent failed to prove his case before the trial court on a balance of probabilities and therefore the trial magistrate erred in arriving at the conclusion that the 1st respondent was entitled to damages for false imprisonment and defamation of character as well as the exemplary damages.

59. In the end, I allow this appeal in its entirety, I hereby set aside and quash the judgment and award of damages made by the trial court on 18/12/2019 in favour of the 1st respondent and substitute that judgment and awards with judgment dismissing the 1st respondent’s claim as contained in the amended plaint dated 30th May 2018.

60. Each party to bear their own costs of this appeal and in the suit before the trial court.

61. This file is closed. I so Order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF NOVEMBER, 2022. R.E. ABURILIJUDGE