[2022] KEHC 10297 (KLR)

Kapa Oil Refineries Ltd v Kamau & another (Civil Appeal 145 of 2018) [2022] KEHC 10297 (KLR) (Civ) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10297 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 145 of 2018

JK Sergon, J

May 18, 2022

Between

Kapa Oil Refineries Ltd

Appellant

and

Harrison Kimotho Kamau

1st Respondent

Attorney General

2nd Respondent

(Being an appeal against the judgment and Decree of the Hon. D. O. Mbeja (SRM) delivered on 14th February 2018, in Civil Suit No.4619 of 2015)

Judgment

1. At the onset, the 1st respondent herein lodged a suit against the appellant and 2nd respondent vide the plaint dated 4th August, 2015 and prayed for reliefs in the nature of general damages together with costs of the suit and interest on the same.

2. In his plaint the 1st respondent pleaded that sometime in the month of May, 2013 the appellant made a report to the police that the 1st respondent had stolen goods belonging to the appellant and on 29th May 2013, the 1st respondent was arrested and detained by police officers, charged with the offence of stealing before the Principal Magistrate’s Court in Mavoko.

3. The 1st respondent pleaded that the police were unable to produce any evidence in court to support the charges and the case against him was withdrawn after more than two years of attending court and that the appellant acted maliciously in making a false report to the police when it knew or ought to have known that the 1st respondent had not committed the alleged theft.

4. It was further pleaded in the plaint that the police ought to have investigated the appellant’s complaint before effecting the arrest and charging the 1st respondent which lead to loss and damage as a result of the aforesaid acts of the appellant and the 2nd respondent.

5. The appellant and 2nd respondent entered appearance on being served with summons and filed their statements of defence on 14th September, 2015 and 17th May, 2015 respectively to deny the 1st respondent’s claim.

6. At the hearing of the suit, the 1st respondent testified while appellant relied on the testimony of one (1) witness. After the full hearing judgment was delivered in favour of the 1st respondent.

7. The appellant has now sought to challenge the aforementioned Judgment on appeal and has put forward ten (10) grounds of appeal as seen in the memorandum of appeal dated 16th March, 2018:i.That the learned trial magistrate erred in law and fact in finding the appellant is liable to the 1st respondent for malicious prosecution contrary to the evidence tendered.ii.That the learned trial magistrate erred in law and fact in shifting the burden of proof from the 1st respondent to the appellant.iii.That the learned trial magistrate erred in law and fact in making a finding that the 1st respondent had established a case against the appellant, when the conditions for malicious prosecution had not been met.iv.That the learned trial magistrate erred in law and fact in apportioning blame on the 1st respondent for malicious prosecution when the appellant was not responsible for criminal investigation.v.That the learned trial magistrate erred in law and fact in making a finding on malicious prosecution on the part of the appellant when the same was not specifically proven.vi.That the learned trial magistrate misconstrued the law on malicious prosecution.vii.That the learned trial magistrate erred in law and fact in failing to consider the evidence and the submissions by the appellant.viii.That the learned trial magistrate erred in law and fact in finding the appellant liable in damages for malicious prosecution contrary to the evidence on record.ix.That the learned trial magistrate erred in law and fact in making an award of damages that was manifestly excessive.x.That the learned trial magistrate erred in law and fact in making an award for damages when the same was not specifically proved.

8. When the appeal came up for hearing, this court gave directions to have the appeal disposed of by written submissions. At the time of writing this judgment the respondents had not filed their submissions.

9. The appellant vide its submissions dated 7th April 2022 identified three issues of determination to be as follows:i.Whether the Learned Magistrate misconstrued the law on malicious prosecutionii.Whether the evidence adduced before the trial court was sufficient to warrant the award of Kshs.500,000/= to the respondentiii.Whether the appellant merits the prayers sought in the appeal?

10. On the first issue, the appellant submitted that for an action to succeed in malicious prosecution, certain conditions must be demonstrated. On this the appellant relied on the case Murunga v Attorney General (1979) KLR 138 as well as by Rudd ,J in the Kagane v Attorney General (1969) EA 643 quoted with approval in Morris Nyamasyo Masila v Nation Media Group Limited & Another(2000) eKLR 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)That the prosecution terminated in the plaintiff's favour;c)That the prosecution was instituted without reasonable and probable cause; andd)That the prosecution was actuated by malice.

11. The appellant submitted that the 1st respondent's prosecution was not motivated by personal animosity or malice, and that the 1st respondent and seven others were apprehended based on credible CCTV footage that clearly showed the 8 stealing the soap.

12. On this one the appellant relied on Rudd, J in the Kagane case (supra) adopted the definition of Hawkins J in Hicks v Faulkner (1878) 8 QBD 167 where reasonable and probable cause was defined as follows;“Reasonable and Probable cause was defined as “ ……to be an honest belief in the guilt of the accused, based upon full conviction, founded on reasonable grounds, of the existence of a state of circumstances which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.” This definition was relied upon also in the case of Thomas Mboya Oluoch & another –vs- Lucy Muthoni Stephen & another (2005) eKLR (appellant’s list of authorities). The prosecutor must himself honestly believe in the case which he is making. The defendant (in this case the respondent) is not required to believe that the accused is guilty: it is enough if he believes there is reasonable and probable cause for a prosecution. He need only be satisfied that there is proper case to lay before the court. If the prosecution is based on information received, it was held in the Kagane case cited above that, “…….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.”

13. The appellant contends that the filing of a formal complaint by the appellant herein based on CCTV footage, which was corroborated by two witnesses at the hearing, should be considered reasonable and probable cause because it shows that the appellant's action was not motivated by malice, as the 1st respondent argued in the lower court, but was entirely in the public interest because the goods stolen were meant for public consumption.

14. On this argument the appellant relied on the case of Margaret Ndege and 3 Others v Moses Oduor Ademba(2021)eKLR“It is not enough to simply state that the criminal proceedings were malicious. There is a need to show how the process of the court is being abused or misused and a need to indicate or show the basis upon which the rights of the appellants were under serious threat of being undermined by the criminal prosecution. In the absence of concrete grounds for supposing that a criminal prosecution is an “abuse of process”, is a “manipulation”, “amounts to selective prosecution” or such other processes, or even supposing that the appellants did not get a fair trial as protected in the Constitution, it is not mechanical enough that the existence of an acquittal on two out of three charges is sufficient enough to amount to malicious prosecution and false imprisonment.”

15. It is the appellant’s submission that the law remains very clear that the mere fact that a person has been acquitted of criminal charges does not necessarily connote malice on the part of the prosecution.

16. On this one the appellant relied on the case of Nzoia Sugar Company Limited v Fungututi(1988) KLR 399 the Court of Appeal held that:“Acquittal person on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor.......”

17. On the second issue, the appellant submitted that the amount awarded to the 1st respondent was not justified because the learned magistrate did not give reasons to justify the said award as in the trite position of the law, a mere comparison is insufficient, and it is the appellant's assertion that the same was unjustifiably excessive and that the matter did not merit any compensation because it did not satisfy the four essential limbs of malicious prosecution and thus must fail.

18. The appellant humbly submitted that there was no malicious prosecution and, as a result, the compensation award was unjustified, and that it should be set aside in its entirety.

19. After perusal of the record of appeal, submissions from the appellant and pleadings, I have identified the following issues for determination;i.Whether the claim for damages for malicious prosecution was proved on a balance of probabilities.ii.Whether the trial Court erred in awarding Kshs.500,000/= in damages after review.

20. It is trite law that for malicious prosecution to be proven there are four elements that must be proven as was held in Mbowa v East Mengo District Administration {1972} EA 352;(a).The plaintiff must show that prosecution was instituted by the defendant, or by someone for whose acts he is responsible;(b).That the prosecution terminated in the plaintiff’s favor;(c).That the prosecution was instituted without reasonable and probable cause;(d).That the prosecution was actuated by malice.

21. Turning to the matter at hand and on the first principle, it is clear that the proceedings in the criminal case were instituted after complaints were lodged by the appellant based on the CCTV footage and the same time the hearing as corroborated by two witnesses .

22. The second principle relates to how the criminal proceedings were terminated. I have carefully perused the proceedings in the criminal case. The 1st respondent and seven others were acquitted under Section 87A of the Criminal Procedure Code.

23. It is true that the 1st respondent was acquitted of the offences he was charged with. This however does not connote malice on the party who instituted the prosecution so long as the same was done honestly, reasonably and without malice. In the case, Republic v James Mureri Karugu & 2 others [2019] eKLR it was held that the respondent has the burden to prove that the prosecutor acted dishonestly and unreasonably. In the trial before the lower court, this burden was not discharged. The 1st respondent did not demonstrate how the police (prosecutor) acted maliciously and dishonestly.

24. On the aspect of the prosecution having been instituted without any reasonable and probable cause, Salmond, a legal scholar in his book Salmond on the Law of Torts defines reasonable and probable cause to mean:-“.... a genuine belief, based on reasonable grounds, that the proceedings are justified.”

25. In the instant case,there is no evidence of malice, unlawful activities, excess or lack of authority, harassment or intimidation, or even court process manipulation to substantially undermine the possibility that the 1st respondent did not get a fair hearing and trial as provided for under Article 50 of the Constitution.

26. It is insufficient to simply state that the criminal proceedings were motivated by malice. There is a need to establish how the court's procedure is being abused or exploited, as well as to indicate or show the foundation on which the 1st respondent’s rights were seriously threatened by the criminal prosecution. In the absence of concrete evidence that a criminal prosecution was a "abuse of process," a "manipulation," "amounts to selective prosecution," or any other process, or even that the 1st respondent did not receive a fair trial as guaranteed by the Constitution, it is not mechanical enough to conclude that the existence of an acquittal is sufficient to amount to a fair trial.

27. The case Kagane -vs- AG (Supra) held that reasonable and probable cause is an honest belief in the guilt of the accused founded on reasonable grounds of existence of circumstances that point to the commission of the offence.

28. In the humble view of this court. The arrest, detention and prosecution of the 1st respondent was not instituted without reasonable and probable cause. There were reasonable grounds for the arrest, detention and prosecution of the 1st respondent

29. Having found that there was every reasonable and probable cause that led to the arrest, detention and prosecution of the 1st respondent, it naturally follows that there was equally no malice that was demonstrated on the part of the appellant or the relevant government agencies in undertaking the arrest, detention and prosecution of the 1st respondent.

30. The trial court awarded a sum of Kshs.500,000/= damages for malicious prosecution and false detention. The Judgment does not show on what basis that award was granted. It is silent on the method the court relied on to arrive at the said amount. An award of damages ought to be hangered on some reasoning. That having not been done, the appellant was right in its submissions that amount awarded was not justified and the fact that the matter did not satisfy the four essential limbs of malicious prosecution did not merit any compensation.

31. The court finds that the 1st respondent did not prove his case to the required standard on a balance of probability, and that the trial court's judgment was based on no sound analysis of the law and the evidence tendered in court. The appeal is allowed. The judgment entered in favour of the 1st respondent is set aside and is substituted with an order dismissing the suit. The appellant to have costs of both the appeal and the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF MAY, 2022. …………………J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent...................................for the 2nd Respondent