[2023] KEHC 26372 (KLR)

Gil Oil Company Limited v Namisi & another (Civil Appeal 154"A" of 2020) [2023] KEHC 26372 (KLR) (Civ) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26372 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 154"A" of 2020

AN Ongeri, J

December 7, 2023

Between

Gil Oil Company Limited

Appellant

and

Timothy Namisi

1st Respondent

Attorney General

2nd Respondent

(Being an appeal from the judgment and decree of Hon. PN. N. GESORA (P.M.) in Milimani CMC No. 6347 of 2018 delivered on 6/3/2020)

Judgment

1. The respondent Timothy Namisi Kisaka filed Milimani CMCC No 6347 of 2018 against the appellants Gil Oil company Ltd and The Attorney General (the 2nd respondent) seeking damages for defamation unlawful detention and malicious prosecution and also special damages of Kshs 297,000 together with exemplary damages and costs of the suit.

2. The respondent was a store keeper with the appellant when he was dismissed, arrested and charged with stealing by servant at Makadara Law Courts.

3. The respondent was acquitted under Section 210 of the Criminal Procedure Code and he filed the suit.

4. The trial court awarded the respondent general damages of Kshs 800,000 and special damages of Kshs 297,000 making a total of Kshs 1,097,000/=.

5. The appellant appeal against the said judgment on the following grounds;i.The learned trial magistrate erred in law and in fact by finding that he appellant had instituted prosecution against the 1st respondent based on suspicion despite overwhelming evidence that he respondent had participated in the attempted theft.ii.The learned trial magistrate erred in law and in fact by failing to take into consideration the fact that the 1st respondent was put to his defence in the criminal trial a fact which shows that the arrest and prosecution was based on a reasonable and probable cause.iii.The learned trial magistrate erred in law and in fact by finding that he prosecution of the 1st respondent was harsh and negligent without any evidence or pleading of particulars of harshness and negligence.iv.The learned trial magistrate erred in law and in fact by finding the appellant liable based on the innovative principles of harshness and negligence as opposed to the settled principles that govern a claim founded on malicious prosecution.v.The learned magistrate erred in law and in fact by failing to find that the ingredients of the tort of malicious prosecution had not been proved on the balance of probabilities.vi.That the learned magistrate erred in law and fact in making findings on liability and quantum which were not supported by law and the evidence on record.vii.That the learned trial magistrate erred in law and fact in failing to consider relevant authorities and submissions both on the issues of liability and quantum filed by the appellant.viii.That the learned trial magistrate erred in law and fat in awarding the respondent general damages of Kshs 800,000/= which award is inordinately high and excessive and not within limits of already decided cases of similar nature.ix.That the learned trial magistrate erred in law and fact in awarding the respondent special damages of Kshs 297,000/= which award is inordinately high, unjust and excessive.

6. The parties filed written submissions as follows; the appellant submitted that lodging a complaint with the police does not satisfy the requirement that the prosecution was instituted by the appellant. the 1st respondent had misrepresented receipt of 2,000 liters and exposed the appellant to loss of 438 liters of diesel which was discovered from the tanker.

7. Further, that the police in their investigation found that the 1st respondent and another employee had committed an offence and forwarded the matter to a court of law. The court handling the case considered the evidence tendered by the prosecution and found that a prima facie case had been made and placed the 1st respondent in his defence.

8. The appellant cited the High Court in Susan Mutheu Muia v Joseph Makau Mutua [2018] eKLR where it was held that “It must always be remembered that the element of malice is material on the part of the prosecutor and not the complainant unless there is collusion between the two.”

9. It was the appellants argument that there was no evidence presented to show that there was a collaboration/collusion between the appellant, the police and the Director of Public Prosecution. Hence no basis to hold the appellant liable on any particular allegation of malice.

10. The appellants further submitted that a private individual such as the appellant cannot be held liable under the tort of malicious prosecution and in support relied on High Court Civil Suit No 2547 of 1998: Douglas Odhiambo Apel & another v Telkom Kenya Limited, the Commissioner of Police and the Attorney General where Justice Kihara Kariuki (as he then was) at Page 2 – 3 of the Judgment, rendered himself as follows:“That is why in a claim for damages for unlawful arrest, false imprisonment and malicious prosecution the proper defendant is always the Attorney General.”

11. On quantum the appellant submitted that the sum of Kshs 800,000 was inordinately high and in complete disregard of comparable case law and suggested an award of Kshs 100,000. In support the appellant cited the following cases;a.In the case of Joel Mudavadi v Eagle Hardware Dealers Limited & another [2019] eKLR the High Court assessed general damages for a claim of malicious prosecution at Kshs 100,000/-.b.In the case of Wilfred Ogero Mosigisi v Julius Ogero Mosigisi & another [2021] eKLR, the Court awarded the Appellant a sum of Kshs 200,000/-.c.In the case of Risper Nyomenda v George Martin Kenyatta [2021] eKLR the High Court maintained an award of Kshs 200,000/- as general damages.

12. The 1st respondent on the contrary submitted that it is clear that the appellant is the one who instituted the prosecution by making the complaint which was fuel for the criminal proceedings.

13. Further, that the trial court went on to critically look into the evidence produced by both parties and was convinced that this matter was not worth criminal prosecution and never needed the intervention of the police.

14. On the element of malice the 1st respondent relied on the case of Attorney General v Peter Kirimi Mbogo & another [2021] eKLR where it was stated that the concept of malice could be derived from the fact that there is no reasonable or probable cause. It was therefore the 1st respondents case that there was no reasonable or probable cause to his prosecution.

15. On quantum the 1st respondent submitted that the Kshs 800,000 awarded as general damages was sufficient and indicated that the assessment of damages is within the discretion of the trial court and the appellate court should only interfere it is too high or low or due to an erroneous estimate not based on evidence.

16. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether it would support the findings of the trial court. In Selle v Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

17. The issues for determination are as follows;i.Whether the appellant established a probable cause to institute proceedings against the 1st respondent.ii.Whether the appeal should be allowed.iii.Who pays the costs of this appeal?

18. On the issue as to whether the appellant had reasonable and probable cause to have the 1st respondent charged, the appellant submitted that it was the 2nd respondent that instituted the criminal charges against the 1st respondent.

19. Further that there was no malice on the part of the appellant who merely reported the matter to the police for investigations.

20. The Appellant also submitted that the 1st respondent had misrepresented receipt of 2,000 liters and exposed the appellant to loss of 438 liters of diesel which was discovered from the tanker.

21. The elements of malicious prosecution are as follows as indicated by Cotran J in Murunga v The Attorney General (1976-1980) KLR 1251: -i.That a prosecution was instituted by the defendant or by someone for whose acts he is responsible.ii.That the prosecution terminated in the Plaintiff’s favour.iii.That the prosecution was instituted without reasonable and/or probable cause.iv.That the prosecution was actuated by malice.

22. In the case of James Karuga Kiiru v Joseph Mwamburi & 3others CA Nairobi 171 of 2000, the court held as follows;“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.”

23. I find that there was evidence that the 1st respondent was arrested exiting the premises of the appellant with 2000 litres of fuel.

24. I find that it is not true that the appellant had instituted prosecution against the 1st respondent based on mere suspicion.

25. There is evidence that he respondent had participated in the attempted theft.

26. The appellant had a reasonable and probable cause to have the matter investigated.

27. Although the 1st Respondent was acquitted under Section 210 of the Criminal Procedure Code, there is no evidence that the Appellant was motivated by malice in making the report to the police.

28. Upon investigations, the 2nd respondent that preferred charges against the 1st respondent and the appellant was only the complainant.

29. In the case of Socfinaf Kenya Ltd. v Peter Guchu Kuria &another[2002]eKLR, the court held as follows;“when there is a case of suspected theft the first step is to report the matter to police who, in their own way find out how to carry out investigations. And it is upto the police to take further steps like taking a suspect to court if they have sufficient evidence against such suspect to warrant such action. This then is the action by police and the state should be involved or joined in such suit and that the complainant should not be blamed for making such report to police. What is of great significance in such a case is whether or not there is reasonable and or probable cause for the arrest and or prosecution of the culprit. And the onus of proving that there was no reasonable and probable cause for the arrest and prosecution of the suspect lies on him/her who queries such arrest or prosecution.As to the prosecution of the respondent, the complainant could not force police to do so when there was no evidence to take them to court. Police carry out investigations before taking suspects to court and there are various incidents when police have declined to prosecute a suspect when investigations have disclosed no offence to warrant thus. If the respondent’s case fell in the latter category then I am sure they would not have taken to court. That a suspect was acquitted of a criminal case is not sufficient ground for filing 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.”

30. I find that the trial court was not right in holding that the appellant and the 2nd Defendant were jointly liable for the loss and damage suffered by the 1st respondent.

31. The onus of proving that there was no reasonable and probable cause for the arrest and prosecution of the 1st respondent was upon him.

32. In this case, I find that there was reasonable and probable cause to have the 1st respondent charged.

33. The mere fact that the 1st respondent was acquitted of the criminal case is not sufficient ground for filing a civil suit to claim damages for malicious prosecution or false imprisonment.

34. I find that the 1st respondent did not adduce evidence to establish that there was spite, ill will and lack of reasonable and probable cause.

35. I find that this appeal has merit and I accordingly allow it and set aside the finding of the trial court on liability and substitute it with an order dismissing the 1st respondent’s case against the appellant and the 2nd respondent.

36. It follows that the appellant and the 2nd respondent are not liable to pay the general damages ordered by the trial court.

37. On the issue of costs, I hold that each party bears their own costs both of the original suit and this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF DECEMBER, 2023. ......................A. N. ONGERIJUDGEIn the presence of:…………………………… for the Appellant…………………………… for the 1st Respondent…………………………… for the 2nd Respondent