[2022] KEHC 1497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 36 OF 2016

KENYA POWER AND LIGHTING COMPANY LTD.................................................APPELLANT

VERSUS

EDWARD ALIELA MUSAMBAI.........................................................................1ST RESPONDENT

ATTORNEY GENERAL.......................................................................................2ND RESPONDENT

(Being an appeal from the ruling in Eldoret CMCC No. 683 of 2011

delivered by Chief Magistrate Honourable C. Obulutsa on 12th February, 2016)

JUDGMENT

1. What is before this court is an appeal against the entire judgment and decree in Eldoret CMCC No. 683 of 2011 rendered on 12th February 2016. The plaintiff had instituted as claim by way of plaint for a claim for general damages for malicious prosecution. The malicious prosecution claim arose from Criminal Case No. 2692 of 2010 wherein the appellant was charged with the offence of stealing contrary to section 275 of the penal Code and subsequently acquitted.

2. The trial court heard and determined the matter in favour of the Plaintiffs. The Defendant was found 100% liable and the respondents awarded damages of kshs. 500,000/- each.

3. The defendant being dissatisfied filed the present appeal vide a memorandum of appeal dated 8th March 2016. The appeal is based on the grounds that the trial court held the defendant 100% liable without analysing the evidence. Further, that there was no proof of the essential elements of malicious prosecution. It sought that the suit in the subordinate court be dismissed with costs.

4. The Appellant filed submissions on 18th October 2021. It submitted that the magistrate erred in holding it liable to the 1st respondent. further, that it had no role to play in the deciding of institution of the criminal case. Its duty was to report to the police that items were stolen and DW2 testified that they received a theft complaint from the appellant and carried out investigations and decided to charge the plaintiff. It does not hold powers to prosecute and cannot be held liable for the tort of malicious prosecution.

5. The appellant submitted that the award for damages was excessive and unreasonable as it was erroneous. Further, that the trial court failed to consider the evidence and submissions by the appellant. The appellant states that there was no malice in the prosecution of the 1st respondent. The trial court failed to follow decided cases with regard to the ingredients to be proven for malicious prosecution. All the four elements were never proved. It cited Music Copyright Society of Kenya vs Tom Odhiambo Ogwol (2014) eKLR in support of this submission.

6. The 1st respondent filed submissions on 1st July 2020, and submitted that the ingredients for malicious prosecution were established. That the officers who arrested him were agents of the appellant. He was found with no case to answer and arresting him on misplaced suspicion and no evidence demonstrated malice on their part. He maintained that he proved his case on a balance of probabilities and the award was reasonable and low compared to awards made in other cases.

Determination

7. Upon perusal of the pleadings, record of appeal and submission filed by both parties, I have identified the following issues as the issues for determination;

a) Whether the elements of malicious prosecution were proven

8. The role of this court in a first appeal is to re-evaluate the evidence and come to its own conclusions as was stated in Selle & Another vs Associated Motor Boat Co. Ltd. & Others (1968) EA 123 in the following words:

“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. 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 demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

9. The law surrounding the tort of malicious prosecution is well settled as it was held by Justice Odunga in Chrispine Otieno Caleb vs Attorney General [2014] eKLR as he was guided by the findings of the judges of the East African Court of Appeal in Mbowa vs east Mengo District Administration [1972] EA 352. The ingredients were established to be;

a. That the prosecution was instituted by the defendant or by someone for whose acts he is responsible.

b. That the prosecution was instituted without reasonable and probable cause.

c. That the prosecution was actuated by malice.

d. That the prosecution was terminated in the plaintiffs’ favour.

10. The contention is that the prosecution was not instituted by the appellant. On that material date it is not disputed that transformers were stolen from the premises. The appellant reported the same to the police. The appellant does not have the power to institute criminal prosecution against the 1st Respondent; that was the duty of the police. It was upto the police to carry out investigations and decide whether to charge or not. In Standard Chartered Bank Kenya Ltd vs Intercom Services Ltd & 5 Others, Civil Appeal No. 37 of 2003 (2004) eKLRthe court held;

“Where the complainant reports a commission of crime to the police and the police upon independent investigations initiate a prosecution; the reporter is not liable for the tort of malicious prosecution unless the report is made falsely and maliciously.”

11. The upshot of the foregoing is that the appellant did not institute the criminal proceedings. It is not in dispute that the prosecution was terminated in favour of the 1st respondent who was acquitted under section 210 of the Criminal Procedure Code. In Chrispine Otieno Caleb vs Attorney General [2014] eKLR the Court (Odunga, J) stated:

“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.’’

12. Probable and reasonable cause was defined in Hicks vs Faulkner (1878) 8QBD as follows;

….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.

13. From the evidence on record, it is clear that the 1st respondent was on the premises on the day of the theft and he was not on duty. His presence was therefore suspicious and would lead an ordinary man to conclude that he had something to do with the theft. I find that there was probable cause for institution of prosecution against him.

14. For the prosecution to have been actuated by malice, the 1st respondent was to prove the actual malice that the appellant had against him. In Kagene v. AG & Anor. (1969) EA 643the court held;

(ii) the fact that the prosecution was instituted on the advice of State Counsel did not it itself constitute reasonable and probable cause. The material must be fairly put to counsel and the prosecutor must still believe in his case;

15. In James Karuga Kiiru vs. Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000, it was held that;

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 (sic) 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.

16. The trial court imputed malice from the actions of the DCIO forwarding the police file to state counsel for advice as per the judgment at page 100 of the Record of Appeal. The forwarding of the file by the DCIO to the state counsel for advice does not impute any malice.

17. It is evident that the four elements necessary for malicious prosecution to be proven did not unite. In the premises the decision of the lower court is set aside. The appeal succeeds with costs to the appellant.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 15TH OF MARCH 2022.

E.K. OGOLA

JUDGE