[2014] KEHC 8485 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL SUIT NO. 782 OF 2007

CHRISPINE OTIENO CALEB.......................................PLAINTIFF

VERSUS

THE HON ATTORNEY GENERAL.................…........DEFENDANT

JUDGEMENT

Plaintiff’s Pleadings

The plaintiffs, by a plaint dated 20th day of November, 2007 and filed on 21st November, 2007 seeks special damages in the sum of Kshs 800,000/=, exemplary damages, general damages, costs and interests arising from the tort of malicious prosecution.

According to the plaintiff, on or about 5th June, 2006 he was arrested by police from his place of work, City Hall, Nairobi and maliciously and without regard to his liberty kept in police custody for four days under degrading conditions and charged in court in Nairobi Criminal Case No. 1009 of 2006 with tramped up charges which were subsequently dismissed on no case to answer on 13th June, 2007.

According to the plaintiff, his arrest, detention and prosecution was unlawful, malicious and occasioned him loss and damages yet despite demand and notice of intention to sue the defendant declined to compensate him.

Plaintiff’s Case

In his statement filed herein, the plaintiff who testified as PW1, reiterated the contents of his plaint and claimed that as a result of the trumped up charges he suffered mental anguish, loss and damages and that from the time of his arrest right thinking members of society avoided him. Apart from that his employer placed him on suspension without pay and his colleagues shunned him.

In his oral evidence the plaintiff testified that he was arrested on 5th June, 2006 and was detained for two nights at Central Police Station and the third night he was taken to Kileleshwa Police Station. On the 4th day he was taken to Court and charged in the criminal case in which he engaged a lawyer. During the time of his incarceration, he was denied the opportunity of taking his medication although he was hypertensive. Although was however acquitted on no case to answer, it has not been easy to convince people that he was not involved.

According to him he was arrested despite explaining to Cpl. Simon Adol, the arresting officer that he was the wrong person.

The plaintiff testified that as a result of the said arrest and charge, he lost an opportunity of being promoted though his peers and those junior to him had been promoted. Similarly he has never moved in rank and was suspended with no pay. According to him, being the sole breadwinner, his family suffered, his children were out of school and he had to continuously beg. According to him, he continues to carry the stigma. In support of his case he produced his bundle of documents filed herein as PEx 1, 2 and 3 respectively.

He therefore sought compensation and the costs of the suit.

In cross-examination by Ms Gathoka, he stated that he was a trained counter terrorist expert from the United Kingdom, a trained teacher and a law enforcement officer trained by police and the City Council. At the City Inspectorate he was in charge of discipline. However his duties were not linked to accounts department.

He however disclosed that there was a training at the Administration Police College where his role was to confirm that the training did take place which is what he did. According to him the person who was authorising payment was one Hillary Wambugu with whom he came into contact as Officer in Charge of training while the plaintiff was to confirm that services were rendered. According to him the said Mr Wambugu, and is still the Director. Since his services were limited to confirming that the training took place, he was not asked to process any payment.

Asked about Lawrence Ogindo, he admitted that he knew him as senior Clerical Officer. According to the plaintiff there was no way he was going to confirm the training without giving him authority in the voucher. The plaintiff’s testimony was that Ogindo was instructed to draw the voucher by the head of the department who had signed the voucher before him. According to the plaintiff the voucher was drawn in the name of APTC which to him meant Embakasi Administration Police Training College. In the said voucher there was a place for him to sign though he did not see the voucher with full names. The plaintiff denied that he gave instructions for the cancellation of the cheque. According to him, he was innocent and did not know the investigating officer before he was arrested.

According to the plaintiff his reason for suing the Defendant was because he was wrongfully arrested. Since he did not know the investigating officer prior to his arrested, he said that he did not think there was malice. However, the fact that he was discharged on no case to answer spoke for itself.

Asked about the duties of a police officer he said it was to keep law and order and partly to investigate. He however said that he did not know who gave instructions for his arrest and whether he was instructed to do so.

According to the plaintiff, his instructions were verbal after his boss had signed. Asked about John Harrison Maina he admitted that he knew him as a co-accused and the one who collected the cheque. He however met him for the fist time when he was charged at the Law Courts.

In re-examination by Mr Opiyo, he said that from the proceedings in the said case there was no reason to charge him as the Investigating Officer said there was no evidence to charge him and that he would not have charged him had he talked to Mr Wambugu hence he brought the plaintiff to court wrongly. Despite that they did not apply for the withdrawal of the case though in the ruling, the Court found that the charge was speculative.

According to the plaintiff although he faced two charges, he was neither involved in the raising of the voucher nor did he ask Ogindo or anybody else to write the voucher. He therefore concluded that these cumulatively constituted malice.

The voucher however was not produced in the trial and in the said voucher the most important signature was that of the Accounting Officer who was the head if the Department and his, was purely to confirm that the training was on.

After the close of the plaintiff’s case, the defence sought for adjournment to avail its witness but after indulgence was given no witness was called for the defence.

Determinations

I have considered the uncontroverted evidence of the plaintiff. What are the consequences of a party failing to adduce evidence? In the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002 Justice Lesiit, citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 stated:

“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail”.

Again in the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.

In the case of Karuru Munyororo vs. Joseph Ndumia Murage & Another Nyeri HCCC No. 95 of 1988 Makhandia, J. held:

“The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon”.

The case ofJanet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J.citing the decision inEdward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No. 23 of 1997 said:

“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.

Similarly in the case of Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000 Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted.

If one is still in doubt as to the legal position reference could be made to the case of Drappery Empire vs. The Attorney GeneralNairobi HCCC No. 2666 of 1996 where Rawal, J (as she then was) held that where the circumstances leading to the deliveries of goods are not challenged and stand uncontroverted due to the failure by the defendant to adduce evidence, the standard of proof in civil cases (on the balance of probabilities) has been attained by the plaintiff.

It was submitted that the Defendant instituted the prosecution against the plaintiff through a charge sheet dated 8th June, 2006, that the plaintiff was arrested and charged by the police and the prosecution undertaken by the Attorney General as public prosecutor and that the Nairobi City Council was merely a complainant. It was submitted that in such cases the proper defendant is always the Attorney General.

It was submitted that the prosecution ended in the plaintiff’s favour as he was acquitted under section 210 of the Penal Code. According to the plaintiff the prosecution was instituted without reasonable and probable cause and that the trial court ruled that the evidence by the Plaintiff’s Superiors and the investigating officers admitted the plaintiff was acting on the instructions of his boss. It was submitted that the shoddy investigations by the police was actuated by malice against the plaintiff.

Without any evidence emanating from the Defendant on how the decision to arrest and charge the Plaintiff was arrived at the Court has no option but to find that there was no probable and reasonable cause since the trial court in the criminal case found that the Plaintiff’s boss and not the Plaintiff ought to have been charged and the investigating officer accepted this fact. Based on Thomas Mutsotso Bisembe vs. Commissioner of Police & Another [2013] eKLR, it was submitted that the failure by the police to take statement from the Plaintiff’s Superior prove that the police neglected to make a reasonable use of the sources of information available and therefore there was want of reasonable and probable cause and also malice.

It was submitted that as a result of the charge and prosecution of the plaintiff which took one year the plaintiff’s reputation was tarnished in the eyes of right thinking members of society, friends and relatives hence the Defendant was liable.

It was further submitted that the plaintiff was detained in custody of the police without any lawful justification or court order for four days under degrading conditions before being charged and suffered mental anguish and stress hence the plaintiff is entitled to damages for false imprisonment, arrest and malicious prosecution and based on HCCC No. 336 of 2008 – Justus Mike Kitiovo vs. Attorney General where an award of Kshs 6. 7 million was awarded, the plaintiff ought to be awarded Kshs 8 million.

It was further submitted that the plaintiff was entitled to Kshs 800,000/- being the sum spent on legal fees.

Determinations

Having taken into account the pleadings, the evidence adduced as well as the submissions made, the following are, in my respectful view, the issues that fall for determination in this suit:

Whether the criminal proceedings were instituted by the defendant.

Whether the said prosecution was actuated by malice.

Whether there was reasonable cause and/or justification to make the complaint to the police.

Whether the criminal proceedings terminated in the plaintiff’s favour.

Whether the defendant is liable to compensate the plaintiffs and if so what should be the award of damages.

Who should bear the costs of the suit?

The law surrounding the tort of malicious prosecution is well settled in this country. In Mbowa vs. East Mengo District Administration [1972] EA 352, the East African Court of Appeal expressed itself as follows:

“The action for damages for malicious prosecution is part of the common law of England...The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit. It originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings...It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth. Its essential ingredients are: (1) the criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests the plaintiff and takes him before a judicial authority; (2) the defendant must have acted without reasonable or probable cause i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified; (3) the defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and (4), the criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge...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. The damage that is claimed is in respect of reputation but other damages might be claimed, for example, damage to property...The damage to the plaintiff results at the stage in the criminal proceedings when the plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage results at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintiff could not possibly succeed without proving that the criminal proceedings terminated in his favour, for proving any or all of the first three essentials of malicious prosecution without the fourth which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the offence charged...The law in an action for malicious prosecution has been clearly defined and in so far as the ordinary criminal prosecution is concerned the action does not lie until the plaintiff has been acquitted of the charge. In this case the respondent could have brought his action for malicious prosecution until the prosecution ended in his favour. He could not have maintained his action whilst the prosecution was pending nor could he have maintained an action after he had been convicted. His right to bring the action only accrued when he secured his acquittal of the charge on appeal, and he then had the right to bring this action for damages...Time must begin to run as from the date when the plaintiff could first successfully maintain an action. The cause of action is not complete until such a time, and in this case this was only after he was acquitted on appeal”.

In Egbema vs. West Nile Administration [1972] EA 60, the same Court held:

“False imprisonment and malicious prosecution are separate causes of action; a plaintiff may succeed on one and fail on the other. If he established one cause of action, then he is entitled to an award of damages on that issue...For the purposes proof that the criminal proceedings have been determined in the appellant’s favour it is enough that the criminal proceedings have been terminated without being brought to a formal end. The fact that no fresh prosecution has been brought, although five years have elapsed since the appellant was discharged, must be considered equivalent to an acquittal, so as to entitle an appellant to bring a suit for malicious prosecution...There was no finding that the prosecution instituted by Uganda Police was malicious, or brought without reasonable or probable cause. The Uganda Police, unlike Administration Police, are not servants or agents of the respondent...The decision whether or not to prosecute was made by the Uganda Police, who are not servants of the respondents after investigation. There is no evidence of malice on the part of the respondent. The appellant was an obvious suspect as he was responsible for the security of the office from which the cash box disappeared. It cannot be said that there was no reasonable and probable cause for the respondent instigating a prosecution against the appellant. The actual decision to do so was taken by the Uganda Police. As the Judge has made no finding as to whether the instigation of the prosecution was due to malice on the part of the respondent, this Court cannot make its own finding. The circumstances of this case reasonably pointed to the appellant as a suspect and there was not sufficient evidence that in handing the appellant over to the Uganda Police for his case to be investigated and, if necessary, prosecuted, the respondent was actuated by malice”.

In Gitau Vs. Attorney General [1990] KLR 13,Trainor, J had this to say:

“To succeed on a claim for malicious prosecution the plaintiff must first establish that the defendant or his agent set the law in motion against him on a criminal charge. Setting the law in motion” in this context has not the meaning frequently attributed to it of having a police officer take action, such as effecting arrest. It means being actively instrumental in causing a person with some judicial authority to take action that involves the plaintiff in a criminal charge against another before a magistrate. Secondly he who sets the law in motion must have done so without reasonable and probable cause…The responsibility for setting the law in motion rests entirely on the Officer-in-Charge of the police station. If the said officer believed what the witnesses told him then he was justified in acting as he did, and the court is not satisfied that the plaintiff has established that he did not believe them or alternatively, that he proceeded recklessly and indifferently as to whether there were genuine grounds for prosecuting the plaintiff or not. The Court does not consider that the plaintiff has established animus malus,improper and indirect motives, against the witness”.

In James Karuga Kiiru –vs- Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000, the court held:

“To prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is. And the burden of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted.”

Rudd, J in Kagane –vs- Attorney General (1969) EA 643,set the test for reasonable and probable cause. Citing Hicks vs. Faulkner [1878] 8 QBD 167 at 171, Herniman vs. Smith [1938] AC 305 and Glinski vs. McIver [1962] AC 726 the learned judge stated thus:

“Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed...Excluding cases where the basis for the prosecution is alleged to be wholly fabricated by the prosecutor, in which the sole issue is whether the case for the prosecution was fabricated or not, the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of objective test. That is to say, to constitute reasonable and probable cause the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty. If and insofar as that material is based on information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution...If it is shown to the satisfaction of the judge that a reasonable prudent and cautious man would not have been satisfied that there was a proper case to put before the court, then absence of reasonable and probable cause has been established. If on the other hand the judge considers that prima facie there was enough to justify a belief in an ordinary reasonable prudent and cautious man that the accused was probably guilty then although this would amount to what I call primary reasonable and probable cause the judge may have to consider the further question as to whether the prosecutor himself did not believe in the probable guilt of the accused, and this is obviously a matter which is to be judges by a subjective test. This subjective test should only be applied where there is some evidence that the prosecutor himself did not honestly believe in the truth of the prosecution...Inasmuch as this subjective test only comes into operation when there were circumstances in the knowledge of the prosecutor capable of amounting to reasonable and probable cause, the subjective test does not arise where the reason alleged as showing absence of reasonable and probable cause is merely the flimsiness of the prosecution case or the inherent unreliability of the information on which the case was based, because this is a matter for the judge alone when applying the objective test of the reasonable prudent and cautious man. Consequently the subjective test should only be applied where there is some evidence directly tending to show that the prosecutor did not believe in the truth of his case. Such evidence could be afforded by words or letters or conduct on the part of the prosecutor which tended to show that he did not believe in his case, as for example a failure or reluctance to bring it to trial, a statement that he did not believe in it and, I think possibly, an unexplained failure to call an essential witness who provided a basic part of the information upon which the prosecution was based.”

The defendant relied, correctly in my view, on Simba vs. Wambari (1987) KLR 601to define what constitutes a reasonable and probable cause as:

“The plaintiff must prove that the setting of the law in motion by the inspector was without reasonable and probable cause….if the inspector believed what the witnesses told him then he was justified in acting as he did and I am satisfied the plaintiff has not established that he did not believe them or alternatively that he proceeded recklessly and indifferently as to whether there were genuine grounds of prosecuting the plaintiff or not”

The foregoing, in my considered view set out the law and the conditions to be satisfied in order for a plaintiff to succeed in the tort of malicious prosecution.

On the first issue whether the criminal proceedings were instituted by the defendant there is no dispute that the said proceedings were instituted on behalf of the defendant. Accordingly I find that the plaintiffs were prosecuted by or on behalf of the defendant.

With respect to the second issue whether the making of the said report was malicious, the law is clear that the mere fact that a person has been acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor. As was held in James Karuga Kiiru vs. Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000, to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is the burden of proving that the prosecutor did not act honestly or reasonably being on the person prosecuted. Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. I say ordinarily because the mere fact that the version of one of the parties is not considered does not make the subsequent prosecution malicious. However, where the police deliberately decide not to take into account the version of the suspect and acts on a story that eventually turn out to be improbable and which no ordinary prudent and cautious man would have relied upon that failure may constitute lack of reasonable and probable cause for the purposes of malicious prosecution. On the other hand it would be obviously absurd to make a defendant liable because matters of which he was not aware put a different complexion upon facts, which in themselves appeared a good case for prosecution. But neglect to make a reasonable use of the sources of information available before instituting proceedings would be evidence of want of reasonable and probable cause and also malice. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for a prosecution. Circumstances may exist in which it is right before charging a man with misconduct to ask for an explanation but no general rule can be laid down. In the present case as already held hereinabove the circumstances from which the court can deduce that the arrest and arraignment of the plaintiff was probably justified have not been disclosed to the court. Was for example the plaintiff’s version sought with regard to the complaints, if any, made against him? In the absence of any evidence as to the facts and circumstances upon which the defendants relied, the court can only conclude that there was no probable and reasonable cause for charging the plaintiff and that constitutes malice for the purposes of the tort of malicious prosecution.

In his evidence in the criminal case, PW13, the Investigating Officer, Simeon Adol, admitted in cross examination that there was no reason for the 2nd accused, the plaintiff herein, to have been charged and that he was not connected to the stealing of the cheque. He in fact admitted that there was no evidence against the plaintiff.

In light of this damning concession from none other than the Investigating Officer, and without any evidence emanating from the Defendant on how the decision to arrest and charge the Plaintiff was arrived at the Court has no option but to find that there was no probable and reasonable cause. Lack of reasonable and probable cause may be evidence of malice. Reasonable and probable cause has been defined to mean the existence of facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified. As was said in Kagame’s Case (supra) reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed which the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of objective test. To constitute reasonable and probable cause therefore the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty. If and insofar as that material is based on information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution. In this case, the information that was received, if any, is unknown to the Court. Whether this information was ever considered before the plaintiff was arrested and charged is also unclear.

As was held by Ojwang, J (as he then was) in Nairobi HCCC No. 1729 of 2001 – Thomas Mboya Oluoch & Another vs. Lucy Muthoni Stephen & Another:

“Unless and until the common law tort of malicious prosecution is abolished by Parliament, policemen and prosecutors who fail to act in good faith, or are led by pettiness, chicanery or malice in initiating prosecution and in seeking conviction against the individual cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense...I do not expect that any reasonable police officer or prosecution officer would lay charges against anyone, on the basis of evidence so questionable, and so obviously crafted to be self-serving. To deploy the State’s prosecutorial machinery, and to engage the judicial process with this kind of litigation, is to annex the public legal services for malicious purposes”.

Without any evidence emanating from the defendants on how the decision to arrest and charge the plaintiff was arrived at the Court has no option but to find that there was no probable and reasonable cause.

The next issue is whether the criminal proceedings terminated in the plaintiff’s favour. There is no doubt that the criminal proceedings were terminated in favour of he plaintiffs. It is now trite law that acquittal whether after hearing both prosecution and defence witnesses or on a finding that there is no case to answer amounts to a termination in favour of the accused. The law is that for the purposes proof that the criminal proceedings have been determined in the appellant’s favour it is enough that the criminal proceedings have been terminated without being brought to a formal end. Accordingly the finding of no case to answer was clearly a termination in favour of the Plaintiff.

In this case the Plaintiff is clearly entitled to an award of damages for malicious prosecution.

It was held in the Uganda case of Dr. Willy Kaberuka vs. Attorney General Kampala HCCS No. 160 of 1993 that:

“The plaintiff suffered injury to his reputation. He testified that the news of his appearance in court was published in a newspaper whose circulation isbelievedto be generally wide. He spent a period of over four months appearing in court on charges, which were hardly investigated by the defendant’s servants. He must have suffered the indignity and humiliation. He is also entitled to recover damages for injuries to his feelings especially the possibility of serving a sentence…There are no hard and fast rules to prove that the plaintiff’s feelings have been injured or that he has been humiliated as this is inferred as the natural and foreseeable consequence of the defendant’s conduct. The plaintiff’s status in Society is also a relevant consideration and for all these reasons the plaintiff is entitled to damages…A plaintiff who has succeeded in his claim is entitled to be awarded such sum of money as will so far as possible make good to him what he has suffered and will possibly suffer as a result of the wrong done to him for which the defendant is responsible”.

The next issue for determination is the quantum of damages. The plaintiff claims general and exemplary damages. With respect to punitive or exemplary damages in Bank of Baroda (Kenya) Limited vs. Timwood Products Ltd Civil Appeal No. 132 of 2001, the Court of Appeal citing Obongo & Another vs. Municipal Council of Kisumu [1971] EA 91 and Rookes vs. Banard & Others [1964] AC 1129 held that in Kenya punitive or exemplary damages are awardable only under two circumstances, namely (i) where there is oppressive, arbitrary or unconstitutional action by the servants of the government; and (ii) where the defendant’s action was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff.

On general damages, in Thomas Mboya Oluoch & Another vs. Lucy Muthoni Stephen & Another (supra) the plaintiffs were in 2005 awarded Kshs 500,000. 00 each general damages for malicious prosecution. In Crispus Karanja Njogu vs. The Attorney General [2008] KLR Waweru, J on 1st February 2008 awarded the plaintiff, whose substantive office was Assistant Registrar though was Acting Senior Assistant Registrar in the Examinations Section of Kenyatta University, the second defendant, Kshs 800,000. 00 general damages for malicious prosecution. In Thomas Mutsotso Bisembe vs. Commissioner of Police & Another [2013] eKLR, this Court awarded the plaintiff Kshs 800,000. 00 for general damages for malicious prosecution on 7th February, 2013.

Taking into account all the circumstances of this case, the status of the plaintiff, the age of the said awards as well as the period spent by the plaintiff in custody and the effect of the said proceedings on the plaintiff’s inability to get promoted, I award the plaintiffs Kshs 2,000,000. 00 general damages for malicious prosecution. As the 4 days the plaintiff was kept in custody was not warranted I am satisfied that the plaintiff is entitled to punitive exemplary damages which I assess in the sum of Kshs 500,000. 00. I also award the plaintiff Kshs 800,000. 00 pleaded and proved special damages.

The plaintiff will also have the costs of this suit as well as interests. Interests on general damages will accrue from the date of this judgement while those on special damages will accrue from the date of filing suit till payment in full.

Dated at Nairobi this 28th day of November, 2014

G V ODUNGA

JUDGE

Delivered in the absence of the parties

Cc Richard