[2023] KEHC 19558 (KLR)

Kibos Sugar & Allied Industries Limited v Odhiambo & another (Civil Appeal E031 of 2023) [2023] KEHC 19558 (KLR) (30 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19558 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E031 of 2023

RE Aburili, J

June 30, 2023

Between

Kibos Sugar & Allied Industries Limited

Appellant

and

Churchill Odhiambo

1st Respondent

The Attorney General

2nd Respondent

(An appeal arising out of the judgement and decree of the Honourable B.M. A. Omollo in the Chief Magistrate’s Court at Kisumu delivered on the 7th February 2023 in Kisumu CMCC No. 216 of 2017)

Judgment

Introduction 1. The 1st respondent instituted suit vide an amended plaint dated 27th June 2017 against the appellant claiming general damages for unlawful arrest, false imprisonment and malicious prosecution following what he alleged were reports made by the appellant to the police that were without any lawful basis.

2. In their defence, the appellant and the 2nd respondent each filed their response denying all the said allegations. During trial, the appellant and 2nd respondent did not participate in the proceedings. The trial court found in favour of the 1st respondent and awarded the 1st respondent Kshs. 250,000 in general damages as well as costs of the suit.

3. Aggrieved by the said decision, the Appellant instituted this appeal vide a memorandum of appeal dated 20th February 2023 and filed on the 22nd February 2023 that raised the following grounds:a.The trial court erred both in law and fact in failing to appreciate that the burden and incidence of proof lay with the plaintiff/claimant throughout the trial.b.The trial court erred both in law and fact in failing to appreciate that both the evidential and legal burden of proof lay with the plaintiff/claimant through the trial.c.The trial court erred both in law and in fact in finding that the plaintiff proved malice on the part of the appellant.d.The trial court erred both in law and fact in failing to appreciate that the appellant did not play any role in the arrest, detention and prosecution of the 1st respondent.e.The trial court erred both in law and fact in failing to appreciate the provisions of Article 157 of the constitution and section 5 of the Office of the Director of Public Prosecution Act, 2013. f.The trial court erred both in law and fact in failing to appreciate the role played by the police officers in line with the relevant provisions of the National Police Service Act.g.The trial court erred both in law and in fact in importing into her judgement extrinsic and foreign evidence in an attempt to buttress a weak case put forward by the 1st respondent.h.The trial court erred both in fact and law in finding for the 1st respondent when the evidence on record was against such finding.i.The trial court erred both in law and fact in misapprehending the ingredients of a claim based on malicious prosecution.j.The judgement of the trial court is against the evidence on record.

4. The appeal was canvased by way of written submissions.

The Appellant’s Submissions 5. It was submitted that the 1st respondent was required to establish and proof that there was no reasonable cause. Reliance was placed on the cases Simba v Wambari [1987] KLR 601.

6. The appellant further submitted that an artificial person cannot have a state of mind that can be translated as malice and that the said malice must be through a natural person as was held in the case of Nzoia Sugar Company Ltd v Fungututi [1988] eKLR, James Karuga Kiiru v Josephat Mwamburi & 2 Others [2001] eKLR, Gitau v Attorney General [1990] KLR 13 and David Karimi Julius v Fredrick Mwenda [2009] eKLR.

7. The appellant submitted that the 1st respondent failed to prove their case on a balance of probabilities against the appellant as the appellant was incapable of forming malice and further as he failed to establish that there was no probable cause for his arrest and prosecution.

8. The appellant submitted that costs ought to be awarded in its favour.

The 1st Respondent’s Submissions. 9. Opposing the appeal, the 1st respondent submitted that from the evidence adduced, the appellant made a complaint to the police who ended up arresting the 1st respondent who was eventually prosecuted and thus it was baseless for the appellant to state that it never made a report and that he was not a complainant in the criminal proceedings just because its name did not appear on the charge sheet. The 1st respondent further submitted that the appellant and the 2nd respondent did not appear before the trial court to controvert the evidence presented by the 1st respondent.

10. The 1st respondent submitted that his arrest by the arresting officer after he had initially been let go by the 1st officer was without any probable cause as was further demonstrated in the trial where none of the prosecution witnesses recognized him or even mentioned him thus demonstrating malice in the mind of the prosecution, police and the complainant.

11. It was his submission that there were no investigations and or recommendations from the prosecution directing the 1st respondent to be charged and further that despite the fact that there was no evidence, the prosecution did not at any time of the proceedings consider discontinuing proceedings against the 1st respondent thus demonstrating malice on the part of the prosecution and police.

12. The 1st respondent further submitted that the appellant could not escape liability as it was the one who made the report and called for the police to come to its company. It was further submitted that the issue complained of by the appellant was between employer and employee yet the 1st respondent was not an employee of the appellant. Regarding this issue of malicious prosecution, the appellant relied on the case of James Karuga Kiiru v Joseph Mwamburi & 2 Others [2001] eKLR.

13. On the issue of quantum, the 1st respondent submitted that the appellant did not appeal or submit on quantum and thus he urged the court not to disturb the trial court’s award on the same but rather dismiss the instant appeal with costs as it lacked merit.

The 2nd Respondent’s Submissions 14. It was submitted that there was no doubt that the 1st respondent was arrested alone, charged, investigations carried out and the matter proceeded to trial. The 2nd respondent further submitted that the proceedings in the criminal case were instituted after complaints lodged by the appellant, which proceedings terminated in favour of the 1st respondent.

15. It was submitted that in the instant case there was no evidence of malice, unlawful actions, excess or want of authority, harassment or intimidation or even manipulation of the court process so as to deprecate the likelihood that the appellant did not get a fair hearing and trial.

16. The 2nd respondent submitted that the arrest, confinement and prosecution of the 1st respondent were not instituted without reasonable and probable cause but rather that there were reasonable grounds for the same.

17. It was thus submitted that it was simply not enough to state that criminal proceedings were malicious but there was a need to show how the court process was being misused or abused. The 2nd respondent submitted that the 1st respondent had not in any way adduced evidence in support of his claim and as such his claim could not succeed.

18. The 2nd respondent submitted that the costs awarded to the 1st respondent were not justifiable as there was no evidence that the 1st respondent’s suffered indignity, humiliation and/or injury to his feelings or to his standing in society and thus the damages awarded were done so erroneously.

19. It was submitted that the elements of malicious prosecution had not been established and hence the appeal ought to be allowed with costs to the 2nd respondent.

Analysis and Determination 20. This being a first appeal, the court is tasked to peruse the entire record cognizant of the fact that it did not have the benefit of hearing the witnesses first hand. The court is further expected to make its own independent conclusions of the law and fact as was established in the case of Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123.

21. Revisiting the evidence adduced before the trial court, the 1st respondent testified that he was wrongfully arrested and subsequently charged with incitement to violence, taking part in an unlawful assembly and malicious damage to property and prosecuted in Winam Criminal Case No. 107 of 2011. The 1st respondent was tried and subsequently acquitted. In his testimony in the trial court and during cross examination, the 1st respondent confirmed that the appellant was the complainant.

22. Despite denying the allegations by the 1st respondent, neither the appellant nor the 2nd respondent adduced any evidence to controvert the said allegations and evidence adduced by the 1st respondent which included the charge sheet and proceedings in the criminal case at Winam Law Courts in Cr case No. 107 of 2011. The appellant and 2nd respondents only filed submissions in the lower court whose judgment is impugned herein.

23. The record of the trial court specifically the proceedings in Winam Criminal Case No. 107 of 2011 reveal that 1st respondent was arrested as part of workers and union officials who were protesting the appellant’s actions in relation to their wages. PW2, P.C. Serem, in the criminal case at Winam testified that they received a complaint from the appellant to the effect that an official from the workers’ union was inciting workers against the management.

24. It is thus not in dispute, contrary to the appellant’s assertion, that the complaint culminating in the prosecution of the respondent was instituted by the appellant. The appellant is a limited liability company that operates with its officials or employees. The charge sheet dated 2/2/2011 clearly shows that the 1st respondent was arrested on the 2/2/2011 and taken to court on the same day. The complainant in all the three counts is the appellant herein, and the property allegedly damaged in the unrest of incitement to violence and the taking part in unlawful assembly, being a motor vehicle Registration number GKA 625 G in count II, belonged to the Police. P.C. Serem testified that they received a call from an official of the appellant from the appellant’s sugar factory that the Union Officials were inciting workers. It is also not in dispute that the prosecution terminated in the respondent’s favour. The issues for determination are;a.Whether the claim for damages for malicious prosecution was proved on a balance of probabilities.b.Whether the respondent was entitled to the damages awarded.

25. The tort of malicious prosecution is established where a person causes the arrest and prosecution of another person without reasonable or probable cause. The threshold for establishing a claim for malicious prosecution was laid down in the case of George Masinde Murunga v Attorney General [1979] KLR 138 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)The plaintiff must show that the prosecution terminated in his favour.(c)The plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause.(d)He must also show that the prosecution was actuated by malice.”

26. A party making a claim for damages for malicious prosecution must therefore establish the ingredients stated above. In this case it is not in dispute that the 1st respondent herein was arrested by the police, detained at Kisumu Central Police Station until the 2. 2.2011 when he was taken to Winam court the same day. It is further not disputed that the said arrest and prosecution was instigated by a report made by the appellant.

27. The 1st respondent testified before the trial court that he had dropped a passenger with his bicycle and was returning back when he was stopped by a police officer who asked him whether he was part of the crowd demonstrating to which the 1st respondent answered in the negative so the officer released him but as he left, a second police officer called out to him and subsequently arrested him. The 1st respondent further testified that he was not an employee of the appellant.

28. In civil proceedings, the standard of proof is on a balance of probabilities. The question as to what amounts to proof on a balance of probabilities was the subject of discourse in William Kabogo Gitau v George Thuo & 2 others [2010] 1 KLR 526 where Kimaru J stated that:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

29. At the trial, the 1st respondent herein bore the onus to prove his case against the appellant on a balance of probabilities. The appellant and the 2nd respondents did not call any evidence in support of their pleadings. The evidence by the 1st respondent was not controverted.

30. It is trite law that uncontroverted evidence is weighty and courts will rely on it to prove facts in dispute. The evidence cannot be controverted by allegations in the statement of defence or submissions if the defendants fails to call a witness to adduce evidence and be cross-examined to test the evidence. It follows that the statement of defence is nothing more than mere allegation. The issue of uncontroverted evidence was addressed by Mwongo J in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another 2019 eKLR where he stated that:“22. There are any authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.23. In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J, relied on the cases below in reaching his judgment. In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.24. Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.25. In Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.26. In light of all these authorities, I am of the view that the position taken by the trial magistrate in dismissing the suit was not warranted. I would reverse the lower court’s determination and substitute with this court’s determination, that the plaintiffs proved their case on balance of probabilities, and are entitled to damages.27. In this regard, no evidence of apportionment of liability being available, 100% liability is attributed to the defendants jointly and severally.”

31. In this case, the failure by the appellant and the 2nd respondent to adduce evidence, not only to challenge the evidence but to give their side of the story must impact this appeal negatively. I will echo the holding by Odunga (as he then was) J in Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR where the learned Judge had this to say and I have no reason to differ as I have so held several times the same way that averments in pleadings. The Judge stated as follows:“That averments in pleadings … are not evidence was appreciated in Francis Otile vs. Uganda Motors Kampala HCCS No. 210 of 1989 where it was held that the court cannot be guided by pleading since pleadings are not evidence and nor can they be a substitute therefor. Before that the then East African Court of Appeal held in Mohammed & Another vs. Haidara [1972] E.A 166 where that the contents of a plaint are only allegations, not evidence. According to Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter Civil Appeal No. 23 of 1997, where a defendant does not adduce evidence the plaintiff’s evidence is to be believed as allegations by the defence is not evidence. In CMC Aviation Ltd. vs. Cruisair Ltd. (No. 1) [1978] KLR 103; [1976-80] 1 KLR 835, Madan, J (as he then was) expressed himself as hereunder:“Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.”What are the consequences of a party failing to adduce evidence" In the case of Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002, Lesiit, J citing the case of Autar Singh Bahra and Another vs. Raju Govindji, HCCC No. 548 of 1998 appreciated that:“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”Again in the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings.”

32. The appellant and the 2nd respondent did not controvert the evidence tendered by the 1st respondent. It is only the 1st respondent who led evidence on how he was arrested, detained, charged and subsequently prosecuted and acquitted. The respondent discharged the burden of proof to the required standard- that is, on a balance of probabilities. In James Kahindi Simba v Director of Public Prosecution & Others [2020] eKLR the court held inter alia that the arresting officer must have sufficient information justifying the arrest of a suspect. The appellant and the 2nd respondent did not demonstrate that they had sufficient information justifying the arrest and subsequent prosecution of the 1st respondent with the offences.

33. On whether there was malice in making the report it is clear that the 1st respondent was not an employee of the appellant. Further, as earlier herein found, the appellant’s official called the police complaining that Union Officials were inciting workers. There was no evidence that the 1st respondent was one of the officials of the Union and that therefore he was involved in inciting workers, or that he was one of the workers of the appellant or that he joined the workers in the incitement or unlawful assembly and or in damaging the property of the government being a GK Vehicle.

34. It was also clear from the criminal proceedings that had the police carried out their investigations or even a little inquiry at the scene of arrest, they could have established that the 1st respondent was not an employee of the appellant and further that he was not a Union Official or part of those demonstrating against the appellant. It also follows that the prosecution prior to making the decision to charge either ignored to review the file and ascertain whether it was prudent and reasonable to bring charges against the 1st respondent.

35. In light of the foregoing it is clear that the appellant had improper motive in allowing the prosecution of the 1st respondent to continue. The acts of malice are further demonstrated by the subsequent prosecution of the 1st respondent despite the fact that he was in no way related to the appellant. I thus find that the 1st respondent proved malice in his subsequent prosecution for an offence which he had nothing to do with. In my view, the appellant and the 2nd respondent acted dishonestly, maliciously and unreasonably in their prosecution of the 1st respondent without establishing whether he was an employee of the appellant and whether he was involved in the commission of the several offences with which he was charged.

36. I find no fault with the judgment of the lower court on liability of the appellant for malicious prosecution. I uphold the judgment.

37. On general damages, I note that the appellant did not raise any issue and despite the 2nd respondent claiming that the 1st respondent was not entitled to the damages awarded, it never filed any appeal to challenge the damages awarded to the 1st respondent.

38. It is trite law that an appellate court ought not to interfere with a trial court’s assessment of damages unless it is persuaded that the award was made on the wrong principles of law or that the same is either inordinately high or inordinately low as to make an entirely erroneous estimate of the damages. See Butt v Khan [1981] KLR 349 where it was held that:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”

39. In the end, I find and hold that the 1st respondent’s claim was merited and that the assessment of damages by the lower court was fair and reasonable and there is no reason to interfere. In the premises the appellant’s appeal herein is dismissed with costs assessed at kshs 30,000 to the 1st respondent.

40. File closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF JUNE, 2023R.E. ABURILIJUDGE