[2017] KEHC 4186 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

CIVIL APPEAL NO. 16 OF 2015

BETWEEN

KENYA POWER & LIGHTING COMPANY LIMITED …….APPELLANT

AND

NELSON AOKO OKUMU …………………............ 1ST RESPONDENT

THE ATTORNEY GENERAL ……………................ 2ND RESPONDENT

(Being an appeal from the Judgment and Decree of Hon. Nyigei, RM at the Senior Resident Magistrates Court at Tamu in Civil Case No. 9 of 2013 dated 24th February 2015)

JUDGMENT

1. This appeal arises from the decision of the subordinate court in which the 1st respondent, as plaintiff, sued the appellant and the Attorney General as 1st and 2nd defendants respectively for recovery of general and special damages for false imprisonment and malicious prosecution. The trial court found the appellant liable and awarded the 1st respondent Kshs. 850,000/- as general damages for malicious prosecution and Kshs. 15,000/- as special damages together with costs of the suit.

2. It is the judgment and consequent decree that has precipitated this appeal whose grounds are set out in the memorandum of appeal dated 26th February 2015. As I see it, the grounds of appeal can be summarised into two grounds. First, that the trial magistrate erred in law and in fact in disregarding the essential ingredients of the tort of malicious prosecution. Second, the trial magistrate erred in finding the appellant liable jointly and severally with the 2nd respondent. The appellant and 1st respondent filed written submissions which I have taken into account. The 2nd respondent did not file any submissions.

3. This being a first appeal, this court is enjoined to evaluate the evidence tendered before the trial court and arrive at its own conclusions bearing in mind that it neither saw nor heard the witnesses testify (see Selle v Associated Motor Boat Co.[1968] EA 123). In order to proceed with this task, it is necessary to set out the salient facts that emerged from the evidence.

4. Only the 1st respondent testified and his testimony was that he was an employee at the appellant’s emergency desk when on 2nd November 2011, he worked upto 5. 30pm and left for home. On 3rd November 2011 he reported to work at 7. 00am when an issue about a lost laptop belonging to one of the appellant’s manager’s arose. The appellant’s security staff were called and they interrogated him. He was later arrested and charged with stealing the laptop in criminal case Tamu Resident Magistrates Court Criminal Case No. 257 of 2011. After the prosecution case, he was acquitted under the provisions of section 210 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).

5. The tenor of the evidence in the criminal trial was that one Nicholas Ngeresa left his laptop in the office on 2nd November 2001 to be repaired. He returned on the next day and found it missing. He reported it stolen and the appellant security officers launched investigations. The investigating officer, who was a police officer attached to the appellant, told the court that she investigated the matter, she established that only the 1st respondent and his co-accused were at the workplace on the material evening when the laptop disappeared hence she charged them. The trial court held that a prima facie case was not established as there was a possibility that the laptop could have been stolen by any other person and the charges were wrongly framed.

6. The legal principles applicable to this case are not in dispute and are agreed by the parties. The ingredients to be proved in a case of malicious prosecution have been stated in several cases cited by the parties among them;Kagane and Others v Attorney General and Another[1969] EALR 643, Katerregga v Attorney-General [1973] EALR 287, Mbowa v East Mengo District Administration[1972] EA 352and Murunga v Attorney General [1979] 138 and are as follows;

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 favour

c) That the prosecution was instituted without reasonable and probable cause;

d) That the prosecution was actuated by malice

7. It is not in dispute that the first two elements were established since the criminal proceedings were instituted as a result of a complaint by the appellant and the proceedings were terminated in the 1st respondent’s favour. The trial magistrate considered whether the 1st respondent proved that the appellant and 1st respondent acted without any reasonable cause and probable cause.

8. After considering all the evidence before her, the trial magistrate held that the appellant was liable because its security officer conducted shoddy and partial investigations as there was no direct evidence connecting the 1st respondent to the theft and that other people who would have been involved were not interviewed. On this basis, the trial magistrate concluded that the 1st respondent had demonstrated malice on part of the appellant through its agent.

9. The 2nd respondent was found liable on account of the fact that it should have exercised caution in deciding to charge the 1st respondent based on the report of the appellant. In the circumstances, the trial magistrate concluded that failure to conduct an independent investigation by wholly relying on the appellant’s investigation constituted malice.

10. The appellant submitted that the 1st respondent failed to prove malice or ill-will against the appellant and or any of its officers. It contended that the evidence was clear that the 1st respondent was acquitted because of a badly drafted charge which indicated that the appellant was the complainant instead of the owner of the laptop and that poor investigations were done. Counsel for the appellant further submitted that there was no evidence that the appellant participated in or influenced the investigation conducted by the 2nd respondent. In its view, there was sufficient evidence before the criminal trial court that the laptop got lost and the report to the police was factual and truthful hence there was reasonable and probable cause.

11. The 1st respondent position is that he proved all the four ingredients of the tort of malicious prosecution. He submitted that the evidence before the criminal trial showed that the police never conducted any investigation and that it is the appellant’s security officers who arrested him and set in motion the prosecution. Counsel for the 1st respondent submitted that the malice on the part of the appellant was evident from the fact that the appellant lodged a complaint of theft of the laptop yet the laptop was personal property of one Nicholas Ngeresa.

12. The test to be applied to determine whether there was reasonable and probable cause for prosecution is to ask whether on the facts, a reasonable person would honestly have believed that the prosecution was likely to succeed. In Standard Chartered Bank Kenya Ltd v Intercom Services Ltd and 5 OthersCivil Appeal No. 37 of [2004]eKLR, Onyango Otieno JA., observed as follows:

Where the complainant reports a commission of crime to the police and 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.

13. On the issue whether there was reasonable and probable cause, the totality of the evidence before the trial court is that the laptop was stolen in circumstances that implicated the 1st respondent. Although the laptop was personal property of an individual, the appellant had an interest in the matter since the theft took place on its premises and involved its employee thus the appellant was entitled to report the matter to the police who were entitled to carry out their own investigations. Whether and how they carried out such investigations was a matter wholly within the control of the police. On this issue, I am satisfied that there was reasonable and probable cause by the appellant and its agent’s to report the theft of its employee’s laptop to the police.

14. I now turn to the issue of malice. Malice means spite or ill and it must be proved in order for a claimant to succeed. Where the defendant it corporate person, there must be malice on the part of its agent from which the company can be held liable. Moreover, the fact of an acquittal is not sufficient to establish malice. In Nzoia Sugar Company Limited v Fungututi [1988]KLR 399, the Court of Appeal had this to say;

Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence in one of its servants that can be attributed to the company.

15. In paragraph 6 of the plaint, the 1st respondent set out the following particulars of malice:

(a) The 2nd defendant arrested and confined the Plaintiff despite the fact that there was no direct evidence connecting him to the theft.

(b) The 1st defendant failed to see the fact that the only person who had an opportunity of stealing were either the person who was doing the repairs or the who purports to have left the laptop with.

(c) The 1st defendant failed to call upon the person who was doing repairs to identify the person he gave the laptop.

(d) The 2nd defendant arrested and charged only two persons while the Defendant’s office had many employees.

(e) The 2nd defendant generally failed to conduct proper investigations.

16. From the particulars of malice pleaded and the entire evidence, there is no evidence that any of the appellant’s employee had malice, ill-will or spite against any officer or agent of the 1st respondent. There is nothing in the proceedings before the criminal trial or before the trial court in this case that suggests that any of the appellant’s employees had any ulterior motive to implicate the 1st respondent. The gravamen of the 1st respondent’s case seems to be that had proper or better investigations been done, he would not have been implicated. This alone without more does not constitute malice.

17. I therefore find and hold the trial magistrate erred in finding that the investigator, “conducted shoddy and partial investigations to please her master who is the 1st defendant. To this end I find that the plaintiff has shown malice on the part of the 1st defendant through its agent.” This finding and conclusion was not borne out by the evidence and no ill-will or malice was proved against the appellant and 2nd respondent.

18. In Mbowa v East Mengo District Administration(Supra), the court held that in order for the cause of action for malicious prosecution to succeed, “[T]he 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.’’It is therefore clear that the 1st respondent failed to prove his case.

19. Notwithstanding the conclusion I have reached above, I am obliged to consider the appellant’s contention that the sum of Kshs. 850,000/- awarded as general damages for malicious prosecution was not only excessive but unreasonable in circumstances of the cases. It is trite law that for an appellate court to interfere with an award of damages it must be shown that the trial court, in awarding of the damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Butt v Khan[1981] KLR 349).

20. Since the award of general damages is an award of damages at large, the court does its best to give fair and reasonable compensation guided by the facts of the case taking into account several factors including the conduct of the parties, the nature and extent of injury whether physical or emotional, actual loss and damage. The court is also guided by similar awards made by courts in similar cases to ensure that the awards are fair, reasonable and consistent.

21. Before the subordinate court, the 1st respondent submitted that a sum of Kshs. 1,200,000/- was adequate compensation based on the case of Leonard Ataro Peter Ajaro v Attorney General Milimani HCCC no. 1173 of 2002 [2008]eKLR. The appellant did not refer to or make any submission on the expected level of damages it expected. The trial magistrate relying on the case cited by the appellant assessed general damages at Kshs. 850,000/-.

22. I cannot say the award of Kshs. 850,000/- was unreasonable or excessive as the trial magistrate considered the case of Leonard Ataro Peter Ajaro (Supra) and awarded a lesser sum in light of the circumstances of this case. Since the appellant did not cite any other cases to assist the court, it can hardly complain that the trial magistrate made the award she did. I would decline to intervene in the award.

23. I allow the appeal with costs to the appellant. Consequently, I set aside the subordinate court judgment and substitute it with an order dismissing the suit against the appellant and 2nd respondent with costs to the appellant and 2nd respondent.

DATEDandDELIVEREDatKISUMUthis20th day of July 2017.

D. S. MAJANJA

JUDGE

Wamaasa & Company Advocates for the appellant.

Mr Emukule instructed by Leina Morintat and Company Advocates for the 1st respondent.