[2022] KEHC 10883 (KLR)

Kenya Wines Agency v Attorney General & 4 others (Civil Appeal 70 of 2018) [2022] KEHC 10883 (KLR) (Civ) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10883 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 70 of 2018

JK Sergon, J

July 21, 2022

Between

Kenya Wines Agency

Plaintiff

and

Attorney General

1st Respondent

Nyakweba Okworo Moturi

2nd Respondent

Edward Kenyatta Ongeri

3rd Respondent

Enos Okinyi

4th Respondent

Micah Nyaberi Ondieki

5th Respondent

(Being an Appeal against the Judgment/Decree of Honourable A.M. Obura (Mrs.) Senior Principal Magistrate delivered on 17th April, 2018 in Milimani CMCC No. 5965 of 2012)

Judgment

Background 1. This is an appeal by Kenya Wines Agency against the judgment and decree of the Honourable A.M. Obura (Mr.) Senior Principal Magistrate in Milimani CMCC no. 5965 of 2012 delivered on 17th April, 2018. The appeal is supported by the 1st respondent who was the 2nd Defendant in the lower court suit that was instituted by the 2nd – 5th respondents.

2. The respondents’ case before the lower court was that they were security guards employed by G4 Securicor Services and assigned to guard the appellant’s premises. That on or about 27th November, 2005, following a malicious and false complaint by the appellant, they were arrested, detained and arraigned at the Makadara Chief Magistrates Court with the offence of Office Breaking and Stealing contrary to Section 306 (a) of the Penal Code vide Criminal Case No. 7419 of 2005. The 2nd -5th respondents further argued that on 28th October, 2009, they were acquitted under Section 210 of the Criminal Procedure. In their plaint dated 5th October, 2012 they claimed for:-i.Special damages of Kshs. 160,000ii.General damagesiii.Interest at court ratesiv.Costs of this suit, andv.Any other relief.

3. After hearing the parties, the learned trial magistrate found that the 2nd -5th respondents had proved their case on a balance of probability and awarded them Kshs. 400,000 on account of general damages, costs of the suit plus interest at court rates from the date of the judgment. In its judgment, the court held;-“In my view, there was proof on a balance of probability that pursuant to a complaint by the 2nd defendant, the 1st defendant set the criminal proceedings in motion thereby subjecting the Plaintiffs to arrest, detention and prosecution without first establishing the veracity of the matter. There is also undisputed evidence that the plaintiffs were eventually acquitted of the charges hence this suit. I find that the defendants failed to show that they had probable and reasonable cause to act in the manner they did as against the plaintiffs. In the case of Nairobi Hccc No. 1729 of 2001; Thomas Mboya Oluoch & Another vs Lucy Muthoni Stephen & Another, Honourable Ojwang J. had this to say on malicious prosecution;‘…to deploy the State’s prosecutorial machinery, and to engage the judicial process with this kind of litigation, is to annex the public legal services for malicious purposes.’In the present case an inference of malice can therefore be drawn from the defendants’ actions. They did not have known the plaintiffs personally as submitted by DW1. The plaintiffs proved this case on a balance of probability.”

4. Being dissatisfied with the said judgment and decree of the subordinate court the appellant has preferred this appeal by way of a Memorandum of Appeal dated 14th February, 2018 and filed in court on same date. The grounds of appeal are: -i.That the Learned trial Magistrate erred in law and in fact by finding that causes of action in malicious prosecution cases arise from the date of acquittal.ii.That the learned trial magistrate erred in law and fact in finding that there was no probable and reasonable cause in the manner that the appellant acted having found that its premises had been bungled into and in inferring malice as against the appellant based on its action of reporting a theft that had occurred at its premises to the police.iii.That the trial magistrate erred in law and in fact in failing to find that the actions of the appellants were the standard response of a citizen who finds that a crime had been committed at its premises.iv.That the learned trial magistrate erred in law and fact in failing to consider and/or address her mind on the reasons why the 2nd, 3rd and 4th respondents were acquitted and further, in failing to consider the dicta of the Court of Appeal on this issue.v.That the Learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions and the authorities that had been tendered and in so doing she arrived at an erroneous decision.

5. On 22nd September, 2021 the parties were directed to file and exchange written submissions. The appellant and the 1st respondent submissions are dated 21st October, 2021 and 25th October, 2021 respectively while the 2nd -5th respondents’ submission is dated 22nd November, 2021.

Appellant’s Submissions; 6. The appellant abandoned the first ground in their Memorandum of Appeal and submitted on the remaining grounds. It is the appellant’s submission that the for one to succeed in a case for malicious prosecution, the following must be proved;a.That the prosecution was instituted by the defendantb.That the prosecution was terminated in the plaintiff’s favourc.That the prosecution was instituted without unreasonable and probable caused.That the prosecution was actuated by malice.

7. The appellant submits that the evidence on record proved that indeed its property was stolen in a burglary that took place at its premises on 27th November, 2005. The incident was witnessed by the 5th respondent, a night guard of the appellant, who admitted being on duty together with the 2nd, 3rd and 4th respondents and even seeing the burglars. Consequently, the appellant contends that it had reasonable cause and/or justification for making the complaint to the police and that the same was without malice. The appellant further submits that having made the complaint and supplied the evidence, the decision to charge was left to the police.

8. It is the appellant’s further submission that an acquittal on a technicality does not lay a basis for a claim for malicious prosecution. Reference has been made to the case of Nzoia Sugar Company Limited vs Funguti [2002] KLR where the Court of Appeal held that;“An acquittal perse on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecution. The mental element of ill-will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company”

9. The appellant maintains that in making the report to the police, it did not act maliciously as every citizen has a civic responsibility of reporting a criminal act. In support, the appellant has referred to the case of David Karimi Julius Vs Fredrick Mwenda Nyeri Civil Appeal No. 270of 2003[2009] eKLR and the case of Egbema Vs West Nile District Administration (1992) E.A. Law,The appellant further submit that the trial court failed to make reference to the submissions and the binding authorities supplied or state their inapplicability thereof.

1st Respondents’ Submission; 10. According to the 1st respondent, the issues for determination are;i.Whether the learned trial magistrate erred in law and fact when she made a finding that, the respondent had established a prima facie case on a balance of probability against the appellant.ii.Whether the learned trial magistrate misdirected herself when she failed to consider adequately the principles of law applicable in a claim for general damages for malicious prosecution.iii.Whether the learned trial magistrate erred in law and fact by relying wholly on the evidence tendered before the criminal case no.iv.Whether the learned trial magistrate misapprehended the principles of law applicable in a claim of general damages for malicious prosecution and therefore arrived at a wrong decision.v.Whether the learned trial magistrate erred in law and fact in failing to consider adequately the appellant’s and 1st respondents written submissions and evidence tendered on its behalf and as a result arrived at a wrong decision.vi.Whether the learned magistrate erred in law and fact by awarding the plaintiffs Kshs. 400,000 as general damages for malicious prosecution together with costs and interest whereas there was no sufficient evidence to warrant such an award.

11. It is the 1st respondent’s submission that the trial court failed to adequately consider the guiding principles of law in proving malicious prosecution outlined by the East African Court of Appeal in Mbowa Vs East Mengo District Administration [ 1972] EA 352. The Court stated inter alia;“…(1) 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;(2)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;(3)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 than its legally appointed and appropriate purpose; and(4)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.”

12. The 1st respondent maintain that the 2nd -5th respondent proved only the fourth ingredients of malicious prosecution and further relied on the case of Katerrega Vs Attorney General (1973) E.A 289 where the court observed that in a claim of damages for malicious prosecution, malice in fact must be proved showing that the person instituting the proceedings was actuated either by spite or by indirect or improper motives. The Defendant stated that in this case the police were performing their duty when they arrested the Plaintiff as they had reasons to believe that an offence which could be tried in court of law had been committed.

13. Additionally, the 1st respondent relies on the case of Socfinaf Kenya Limited Vs Peter Guchu Kuria Nairobi High Court Civil Appeal No. 595 Of 2000 (unreported) and that of Nzoia Sugar Company Ltd V Funguti [1988] KLR 399; where the court opined that an acquittal in a criminal case is not sufficient ground for filing a suit for malicious prosecution but one has to prove spite, ill will, lack of reasonable and probable cause.

14. The 1st respondent maintains that in arriving at its decision the trial court considered irrelevant matters and failed to consider the evidence and submissions before it. Consequently, the decision ought to be set aside or overturned. Reference was made to the case of Jabane Versus Olenia[1968] KLR 661, 664 and the case of Isaac N. Okero V Samuel Otieno Onyango [2017]eKLR where the court overturned a decision of the trial court where it found that the trial court failed to consider whether there was evidence on malice or ill will in arriving at its decision.

15. On damages, the 1st respondent states that the trial court had the discretion of assessing and awarding damages payable, however, the same ought to be made based on laid down principles. Relying on the case of Stephene Gachau Githaiga & AnothervsAttorney General [2015] eKLR the 1st respondent submit the 2nd -5th respondents were not entitled to any damages and that the trial magistrate took into account irrelevant factors in assessing the damages payable thus calling for this court’s interference with the award. Reference has been placed on the case of Mbowa Vs East Mengo District Administration [1972] EA 352 where the court held that in order to create or establish a cause of action, the plaintiff has to prove the four elements or requirements of malicious prosecution.

2nd 5th Respondents’ Submission 16. The respondents listed the issues for determination as follows;i.Whether the trial magistrate erred in law and in fact in finding that the Appellant and the 1st Respondent maliciously prosecuted the 2nd – 5th Respondents.ii.Whether the prosecution of the 2nd -5th respondents was driven by malice from the appellant and the 1st respondent.iii.Whether the 2nd -5th respondents were entitled to general damages awarded by the trial magistrateiv.Who should bear the cost of this Appeal.

17. On the first issue, it is the 2nd -5th respondents’ submissions that the magistrate’s finding that they were maliciously prosecuted was proper as the same was based on the facts and evidence placed before the court. The magistrate based her finding on the fact that the 2nd -5th respondents were arrested without proper investigations, detained for two days before being formally charged in court and there was no evidence that the stolen goods were recovered from them or linked to them.

18. They further submitted that they proved their case based on the threshold for determining malicious prosecution laid down in George Masinde Murunga V Attorney General[1979] KLR 138, where it was held:-“As to malicious prosecution the plaintiff must prove four things: (1) that the prosecution was instituted by Inspector Ouma (there is no dispute as to this); (2) that the prosecution terminated in the plaintiffs’ favour (there is also no dispute as to this); (3) that the prosecution was instituted without reasonable and probable cause; and (4) that it was actuated by malice.”

19. The 2nd-5th respondents maintain that they are entitled to the damages awarded by the trial court since they proved their case as against the appellant and the 1st respondent. They have made reference to the Ugandan case of DR. Willy KaberukavsAttorney GeneralKampala where the court held that;“The plaintiff suffered injury to his reputation. .............................He must have suffered the indignity and humiliation. He is also entitled to recover damages for injuries to his feelings especially the possibility of serving a sentence…There are no hard and fast rules to prove that the plaintiff’s feelings have been injured or that he has been humiliated as this is inferred as the natural and foreseeable consequence of the defendant’s conduct. The plaintiff’s status in Society is also a relevant consideration and for all these reasons the plaintiff is entitled to damages…A plaintiff who has succeeded in his claim is entitled to be awarded such sum of money as will so far as possible make good to him what he has suffered and will possibly suffer as a result of the wrong done to him for which the defendant is responsible.”

Analysis and Determination; 20. Having considered the evidence on record, the issue for determination is whether the tort of malicious prosecution, unlawful arrest and false imprisonment has been proven to the required standard. The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. According to Odunga’s Digest on Civil Case Law and Procedure page 5276, the essential ingredients to prove malicious prosecution are as follows:a.The criminal proceedings must have been instituted by the defendant.b.The defendant must have acted without reasonable or probable cause.c.The defendant must have acted maliciously.d.The criminal proceedings must have been terminated in the plaintiff’s favor.

21. The plaintiff must satisfy all of the above elements of malicious prosecution in order to succeed in obtaining an award of damages against the defendants. In the present case, the 2nd -5th respondents were arrested on the 27th November. 2005 following a complaint by the appellant. They were then detained for two days at the Industrial Area Police Station by the police acting as agents of the 1st respondent. On 6th December, 2005 they were charged and prosecuted for the offence of Office Breaking and Stealing c/s 306 (a) of the Penal Code, with an alternative charge of Failing to prevent a Felony c/s 392 of the Penal Code vide Makadara Criminal Case No. 7419 of 2005. The case was set down for hearing and on 28th October, 2009, the trial court found that they did not have a case to answer and acquitted them under Section 210 of the Criminal Procedure Code.

22. The appellant through its Warehousing Manager, DW1, (Philip Bartey) testified that he made a report to the police on behalf of the appellant as per the company policy and for insurance purposes. It was his testimony that the report was based on what had occurred on the night of 9th November, 2005 hence no ill motive. DW1 testified that the arrests were made after the police visited the site. In his further testimony, the appellant maintained that it did not participate in the subsequent arrest, detaining and the drawing of charges as against the 2nd -5th respondents. The 1st Respondent did not avail a witness in the lower court case despite being served.

23. The trial court held that on that;“In my view, there was proof on a balance of probability that pursuant to a complaint by the 2nd defendant, the 1st defendant set the criminal proceedings in motion thereby subjecting the plaintiffs to arrest, detention and prosecution without first establishing the veracity of the matter.”

24. At the time the appellant made the complaint the Kenya Police were the ones who were responsible for investigating and taking out public prosecution on behalf of the Attorney General (now Director of Public Prosecution). The appellant had neither control nor discretion over the matter. The investigation discretion and decision as to whether to charge or not to charge lay with the 1st respondent through its officers or agents. I find that the appellant only reported the case to the police in line with its management policy and as a standard response of a citizen who finds that a crime has been committed at its premises.

25. It is further not disputed that the criminal proceedings were terminated in favour of the 2nd -5th respondents. After the hearing of the prosecution case, the court in its ruling of 28th October, 2009 found that the appellant had failed to avail the investigation officer or any evidence on the kind of investigation that were carried out by the police. Consequently, the court acquitted the 2nd -5th respondent under Section 210 of the Criminal Procedure Code which provides that;“210. Acquittal of accused person when no case to answer If at the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as the prosecutor and the accused person or his advocate may wish to put forward, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him.”

26. The next issue is whether the prosecution was initiated without reasonable and probable cause. The Black’s Law Dictionary (10th Edition) defines ‘reasonable’ as; -Fair, proper or moderate under the circumstances; sensibleAccording to reason“Probable Cause” on the other hand has been defined as;“A reasonable ground to suspect that a person has committed or is committing a crime”

27. The term "reasonable and probable cause" was further defined in the case of Glinsk V Mclver[1962] AC 726 by Lord Devlin, who held that;“reasonable and probable cause means that there must be sufficient ground for thinking that the accused was probably guilty but not that the prosecutor necessarily believes in the probability of conviction…”

28. The learned editors of Clerk and Lindsell on Torts, 19th ed. (2006) at p. 991, discuss Malice as follows:“Improper motivesMalice in this context has the special meaning common to other torts and covers not only spite or ill-will but also improper motive. The proper motive for a prosecution is, of course, a desire to secure the ends of justice. If a claimant satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and probable cause. The jury, however, are not bound to infer malice from unreasonableness and in considering what is unreasonable they are not bound to take the ruling of the judge.”

29. In the Kenyan case of Murunga V. A.g (1979) KLR 138, the High Court (Cotran, J.) set out the test for reasonable and probable cause in a case of false imprisonment and malicious prosecution as follows;“In proceedings for malicious prosecution, the plaintiff must show (1) that a prosecution was instituted by the defendant or by someone for whose acts he is responsible, (2) that the prosecution terminated in the plaintiff’s favour, (3) that the prosecution was instituted without reasonable and probable cause, and (4) that it was actuated by malice. The test whether the prosecution was instituted without reasonable and probable cause is whether the material known to the prosecutor would have satisfied a prudent and cautious man that the plaintiff was probably guilty of the offence.”

30. To prove reasonable and probable cause, the totality of the material within the knowledge of the prosecutor at the time of instituting the prosecution, whether the material consists of facts discovered by the prosecution team or information which has come to him through the complainant, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty.

31. In the present case, the 2nd -5th respondents were guarding the appellant premises when the premises were broken into and some equipment stolen. The appellant made a report to the police who arrived at the scene and after investigation arrested the 2nd-5th respondents who were on duty on the material night. They were later charged with the offence of office breaking and stealing c/s to Section 306(a) of the Penal Code with an alternative charge of Failing to Prevent a Felony c/s 392 of the Penal Code.

32. I have perused the criminal proceedings and note that the appellant’s employees who were bonded testified. However, the prosecution failed to avail the Investigation Officer despite several adjournments. It further failed to produce the police file which would have ordinarily stated that the evidence of the kind of investigation that were carried out in support of the charges against the 2nd- 5th respondents. In their submissions before the lower court, the 2nd -5th respondents stated that their arrest, detention and prosecution was unjustified. It was their submission that they did all they could possibly do in the circumstances by raising the alarm and patrolling the compound. Additionally, they contended that none of the stolen items were found with them.

33. Without the advantage of the Investigation Officer’s testimony or the evidence in the police file, the trial court found that the prosecution had failed to establish any case as against the 2nd-5th respondents hence the acquittal. Similarly, without evidence on how the decision to arrest and charge the 2nd-5th respondents was arrived at, I find that the lower court did not err in finding that the prosecution was instituted without reasonable and probable cause and was hence malicious.

34. The trial court awarded the 2nd-5th respondents Kshs. 400,000 each as against the appellant and the 1st respondent jointly and severally. Before the lower court, the 2nd -5th respondents proposed a sum of Kshs. 1,000,000. The appellant proposed a sum of Kshs. 300,000 and relied on the case of Thomas Mboya Oluoch & Another Vs Lucy Muthoni Stephen & Another [2005] eKLR. It has not been demonstrated that the award of general damages in this case was inordinately high as to be an erroneous estimate or that in awarding the damages, the trial Court laboured under a wrong principle or appreciation of the facts of the case. I do not find that the sum of Ksh.400,00/- awarded by the trial Court in general damages was excessive in the circumstances of the case.

35. In the end, this court finds that the 2nd- 5th respondents failed to prove malicious prosecution as against the appellant. The appellant did report the theft incident to the 1st respondents’ officers, who conducted investigation, arrested and charged the 2nd -5th respondents. During the criminal proceedings and despite several adjournments, neither Investigation Officer testified nor was the police file submitted into evidence. The basis on which the 2nd -5th respondents were arrested, detained and charged was not given thus leading to a finding of no case to answer and a subsequent acquittal under Section 210 of the Criminal Procedure Code. It is on these grounds that I do agree with the findings of the trial court that there was no evidence of thorough investigations by the 1st respondents’ officers or agents hence proof that the criminal proceeding was instituted without reasonable and probable cause.

36. I find that the tort of malicious prosecution was proved against the 1st respondent only and consequently the 2nd -5th respondents are entitled to general damages as awarded by the lower court. Accordingly, the partly appeal succeeds to the extent stated herein hence there shall be no orders as to costs in the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 21ST DAY OF JULY, 2022. ..................................J. K. SERGONJUDGEIn the presence of:………………………………. for the Plaintiff………………………………. for the Respondent