[2021] KEHC 3323 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CIVIL APPEAL NO.49 OF 2018

BUMBE TECHNICAL TRAINING INSTITUTE...................................APPELLANT

VERSUS

HUMPHREY ONYANGO.......................................................................RESPONDENT

J U D G M E N T

[1]This appeal arises from Busia CM CC No.136 of 2009 in which the appellant, Bumbe Technical Training Institute, and the Attorney General of the Republic of Kenya, were sued by the respondent, Humphrey Onyango, for damages arising from malicious prosecution and false imprisonment. It was pleaded that the appellant was the complainant in Busia PM Criminal Case No.1355 of 2005 in which the respondent was charged with the offence of failing to prevent the commission of a felony, contrary to s.392 of the Penal Code. That, the complainant and subsequent prosecution of the respondent was malicious and motivated by spite and ill-will on the part of the appellant as a result of which the respondent suffered loss and damage and prayed for damages and costs.

[2] The appellant’s statement of defence was a denial of the respondent’s claim and a contention that the complaint was not actuated by malice but was made in good faith. That, the appellant made a report to the police whose investigations arm preferred charges against the respondent.

The appellant therefore prayed for the dismissal of the respondent’s claim with costs.

[3]At the trial, the respondent (PW 1) testified that he was at the material time employed as a watchman by the appellant when a theft occurred at the appellant’s property on the night of 4th/5th July 2005. As a result, a letter of suspension was served upon him but his employment was ultimately terminated. He was jointly charged together with a colleague for the offence but was acquitted. He contended that the appellant acted wrongly and maliciously in arraigning and prosecuting him in court. He therefore prayed for general damages for unlawful arrest, confinement and malicious prosecution.

[4] In defence, the appellant’s principle (DW 1) testified that the respondent was on duty on the night of the theft which resulted in the loss of sewing machines, school uniforms and bulbs. A report was made to the police who investigated the matter, arrested and charged the respondent.

[5]The trial court considered the evidence and rendered itself thus, “The first defendant didn’t initiate any preliminary investigations because (sic) accusing the accused person for stealing their sewing machines. The police failed to do their work properly and failed to prove the first defendant’s case against the plaintiff and he was acquitted. For this they are liable for malicious prosecution for charging the accused without evidence after incarcerating him in custody for two days.

I am satisfied the plaintiff proved his case on a balance of probabilities against the first and second defendant who is responsible for the police. I enter judgement in favour of the plaintiff as against the defendant jointly and severally.

General damages for unlawful confinement Kshs.20,000/=

General damages for malicious prosecution Ksh.50,000/= Total 70,000/=

I also award the plaintiff costs of the suit plus

Interest at court rates till payment in full”

[6]The appellant, being aggrieved with the judgment, preferred the present appeal on the basis of the grounds set out in the memorandum of appeal dated 16th October 2013.

The hearing of the appeal proceeded by way of written submissions. In that regard, the appellant’s summons dated 15th September 2021, were filed by Balongo & Co. Advocates, while those of the respondent dated 24th September 2021, were filed by Ashioya & Co. Advocates.

[7]Having considered the grounds of appeal against the rival submissions and also having reconsidered the evidence bearing in mind that the trial court had the advantage of seeing the witness, this court holds the view that the respondent’s case against the appellant as may be deciphered from the pleadings was unsupported by sufficient and credible evidence from the respondent. There was nothing to show that the appellant’s action of reporting the theft to the police was actuated by malice or ill-motive. It was not that they pinpointed the respondent and said that he was responsible for the theft. They merely performed their civic duty of reporting an offence to the rightful law enforcement agency i.e. the police.

[8]It was the said agency that investigated the compliant made to them and determined the respondent’s culpability in the transaction. Thereafter, they acted lawfully by arresting the respondent before arraigning him in court for failure to prevent the theft rather than for the theft itself. It was the respondent’s obligation to establish on a balance of probabilities whether or not their actions were activated by malice or ill-motive.

[9]This court does not think that the respondent discharged hisburden of prove against the police nor the appellant.

The fact that the police did not perform their duty properly was notestablished and even it was, it did not amount to proof of malice. Therewas no evidence that the appellant was required to carry out a preliminaryinvestigation before reporting an offence of theft to the police. In anyevent, as was pointed out by the appellant’s principle, the appellant merelyreported to the police the theft of its property when the respondent was onduty as one of the appellant’s night guards or watchmen. The appellantdid not say that the respondent was the thief neither did the police chargehim with theft which is not the same thing as failing to prevent a felony.

[10]Indeed, in this entire case, there was no scintilla of evidencefrom the respondent showing or establishing that the appellant or eventhe police were actuated by malice in doing what they respectively did,being that the appellant made a report to the police who acted on it andcarried out necessary investigations before arraigning the respondent.

[11]Besides an acquittal in a criminal case may be based on a legaltechnically or lack of sufficient and proper evidence. It does notnecessarily prove malice on the part of the complainant which in thematerial criminal case was either the appellant or the police or both. It iswithout doubt that an acquittal would provide good grounds for a claimof false imprisonment and malicious prosecution. However, such aclaim must necessarily be established and proved by sufficient andcredible evidence.

[12] With the greatest respect, and for all foregoingobservations, it is this court’s finding that the trial court’s findings anddecisions were against the weight of the evidence for a verdict of liabilityagainst the appellant or indeed the police thought the Honourable theAttorney General of Kenya. There was nothing to show that therespondent’s arrest and arraignment in court was actuated by spite ratherthan for the benefit of the public or that it was an exercise in abuse of thecriminal justice process. It was not in dispute that there was theft at theappellant’s premises when its night guard or watchmen including therespondent were on duty but failed to prevent it.

[13] In sum, ground one and two of the appeal which were the most important and relevant in the present circumstances are hereby sustained. Grounds three and four were insignificant and mostly pedestrian.

Ultimately, this appeal must be and is hereby allowed with costs to the appellant.

Ordered accordingly.

[DELIVERED AND SIGNED THIS 30TH DAY OF SEPTEMBER 2021]

J.R. KARANJAH

J U D G E