[2018] KEHC 6367 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 379 OF 2010

JOSEA KIPYEGON LANGAT..............................PLAINTIFF

-V E R S U S –

ATTORNEY GENERAL............................1ST DEFENDANT

THE COMMISSIONER OF POLICE.......2ND DEFENDANT

PREMIER FLOUR MILLS LIMITED.....3RD DEFENDANT

JUDGEMENT

1. On 20th August 2008, Josea Kipyegon Lang’at, the plaintiff herein was arrested and subsequently tried for the offence of theft by servant contrary to Section 281 of the Penal Code. He was accused of stealing a bag of brown wheat flour weighing 90 kgs valued at ksh.5,100/=, the property of Premier Flour Mills Ltd, the 3rd defendant herein. The Hon. Attorney General and the commissioner of Police were named as the 1st and 2nd defendants respectively.

2. The case was eventually dismissed for lack of evidence and the plaintiff was acquitted under Section 210 of the Criminal Procedure Code. Upon his acquittal, the plaintiff filed this suit in which he is seeking for damages against the defendants jointly and severally for damages for false imprisonment and malicious prosecution.

3. When the suit came up for hearing, the plaintiff testified in support of his case without summoning independent witnesses.

4. The 3rd defendant summoned Abdullatiff Abeid Oywer (Dw1) and Martin Omondi (DW2) to testify in support of its defence. The 1st and 2nd defendants did not summon any witness in support of their defences.

5. The plaintiff (PW1) told this court that he was employed by the 3rd defendant as a driver in 2002. He said that on 20. 8.2008 he was instructed to transport 50 bags of brown wheat to Supa Flo Ltd Industrial area in Thika Township. PW1 said he managed to offload the consignment but were rejected because they had expired and he was forced to take back the whole flour to the 3rd defendant’s stores. He said that on his way back, he was stopped by Mr. Abdullatif, a security officer from the 3rd defendant who was accompanied by two police officers. He said he was forced to drive to Industrial area police where he was locked up before being taken to Makadara Court where he was charged. He claimed he hired the services of Mr. Makori, learned advocate to defend him in the criminal case which lasted a year before the case was dismissed for lack of evidence. He said he did not steal as alleged by the 3rd defendant.

6. The plaintiff claimed that he was maliciously prosecuted for an offence he did not commit. In cross-examination, PW1 said he did not know the policemen who arrested him. He also admitted that the police who arrested him had no malice against him. He further said that he was released on a cash bail at the police station. PW1 also alleged that the case facing him was not investigated at all. The plaintiff alleged that the 3rd defendant’s sales manager, one Mr. Assif had malice against him. He claimed Mr. Assif had warned him that he would be sacked any time before he was arrested. He however exonerated Mr. Abdullatiff (DW1) from his woes. He said he had a cordial relationship with DW1.

7. Mr. Abdullatif (DW1) told this court that he had worked for the 3rd defendant for over 20 years at the time of testifying. He said he manages and monitors security officers attached to or hired by the 3rd defendant. DW1 stated that on 18. 8.2008, the plaintiff was instructed to transport 50 bags of wheat flour to Supa Flo. DW1 said that Supa Flo, Thika, later called alleging that the plaintiff had instead delivered 49 bags instead of 50 bags. DW1 said he trailed the plaintiff and witnessed him loading a bag on the lorry after which he passed by a petrol station to make a phone call. Shortly, someone came and had a conversation with the plaintiff. DW1 further said that he saw a canter parked next to the lorry driven by the plaintiff and two men alighted and proceed to the plaintiff’s lorry where the plaintiff opened the door and the men took away the bag of wheat flour and loaded it on their canter. The police who had trailed the plaintiff and pounced on the plaintiff and arrested him. The police too arrested those men and recovered the bag of wheat. DW1 said that he was not bonded to attend court by the police. Martin Omondi (DW2) took through this court the operations of the weigh bridge which the lorry driven by the plaintiff goes through. DW2 pointed out that there was clear evidence that there was a difference of near a 100kgs.

8. At the close of evidence, learned counsels were invited to file and exchange written submissions. I have considered those rival submissions. Two main issues commend themselves for determination. First, whether the plaintiff has established his claim for malicious prosecution to the required standards.

Secondly, depending on the outcome of the above issue, what is the available remedy?

9. On the first issue, it is important to first state the ingredients which must present themselves in order for a case for malicious prosecution to be proved. In the case of Mbowa =vs= East Menya Administration (1972) E.A 352, it was held inter alia as follows

“The action for damages for malicious prosecution is committed where there is no real reasons for instituting criminal proceedings. The purpose for prosecution should be personal and spite rather that the public benefit.”

10. The same case further states the essential ingredients as follows:

a. 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.

b. 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;

c. 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 that its legally appointed and appropriate purpose; and

d. 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.”

11. In the case before this court, it is not in dispute that the plaintiff was acquitted of the charge for failure by the police to bond the witnesses. In fact DW1 and DW2 submitted their witness statements they had recorded with the police. The plaintiff expressly stated that the police who came to arrest him were not known to him and that they had no malice against him.

12. The plaintiff further admitted that Mr. Abdullatif (DW 1) the witness who testified in support of the 3rd defendant’s case had no malice against him.

13. I have carefully considered the material placed before this court.

There is no dispute that a bag of wheat flour was recovered from some men who were arrested by the police who had been sent to trail the plaintiff near Eastleigh in Nairobi. Those men were arrested too. The evidence tendered by Martin Omondi (DW2) indicate that there was a difference which could not be explained by the plaintiff of wheat flour weighing nearly a 100kg. On the basis of the above facts, the 3rd defendant was right to make a report to the police. That was a probable cause which cannot by any stretch of imagination be said to be malicious. In the end I find that the plaintiff’s case does not have the ingredients to establish the tort of malicious prosecution.

14. Having determined the first issue, let me now determine the question of quantum. The plaintiff has asked to be paid ksh.50,000/= as special damage. He has stated that he spent the aforesaid sum as legal fees to defend himself. The amount is specifically pleaded as a special claim. The plaintiff has however failed to present credible evidence to establish the claim. I decline to award him the claim. On general damages, I am of the view that had the plaintiff established his claim, I would have awarded him a global sum of ksh.60,000/= as general damages.

15. In the end this suit is found to be without merit. It is dismissed.

In the circumstances of this case, a fair order on costs is to order which I hereby do, that each party meets its own costs.

Dated, Signed and Delivered in open court this 25th day of May, 2018.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Plaintiff

.................................................. for the Defendant