[2023] KEHC 25337 (KLR)

Krystalline Salt Limited v Ngolo & 6 others (Civil Appeal 11 of 2022) [2023] KEHC 25337 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25337 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 11 of 2022

DKN Magare, J

November 7, 2023

Between

Krystalline Salt Limited

Appellant

and

Kadzo Ngumbao Ngolo & 6 others

Respondent

Judgment

1. This is an appeal against the Judgment and decree of the Honourable W.K. Chepsemba Usui on 7/2/2022. It was read on 7/2/2022 in Malindi CMCC 244 of 2018.

2. The file appears unseemly, because of myriad of applications therein.

3. The memorandum of Appeal is a mind boggling 15 ground monolith that is prolixious, repetitive and strong on authorities and with polarity of consciousness and laser guided pleadings. The memorandum of Appeal is an anthem to good pleadings and a classic example of how never to plead.

4. The Appellant should file concise Memorandum of Appeal. Under Order 42 Rule, 1 provides are doth: -“1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

5. The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

The issues for Determination 6. There are only 2 issues raised in the memorandum of Appeal, that is: -a.Whether the Learned Magistrate erred in law and in fact in finding the Appellant liable for malicious prosecution.b.Whether the court disregarded principles for award of general damages for malicious prosecution.

Pleadings 7. The Respondent Kadzo Ngumba Ngolo filed suit indicating in the plaint that he was doing so as males adults (sic). The said males were not named in the plaintiff itself.

8. He stated that they were arrested on 23/5/2014 and charged with trespass contrary to Section 3(1) of the Tresspass Act, Cap 394, Laws of Kenya. That on 26/5/2023, they appeared in Criminal Case No. 147 of 2014.

9. In paragraph 5 several accused are named. They are said to have been released on cash bail of Ksh. 3,000. They had to seek funds to secure the cash bail. There was no probable cause for their arrest. They state they had to be prosecuted for 2½ years and were unlawfully and maliciously arrested.

Decision 10. In the judgment the court had 7 persons as plaintiffs. These were:a.Kadzo Ngumbao Ngolob.Joram Chea Msanzuc.Erick Fondo Mwandarod.Anderson Chea Mshanzue.Emmanuel Kazungu Charof.Kenga Ngumbao Jefag.Kazungu Wanje Nyale

11. The Court found the defendant liable and awarded each Kshs. 150,000 totaling to Kshs. 1,050,000/=. I have perused the judgment and note that the Court found as follows: -“I have considered the above evidence and the submission from the above evidence. It is the Defendants employer who initiated the arrest of the plaintiffs by informing their PR about trespass. There are also therefore responsible for malicious prosecution which led to the acquittal of the plaintiffs. The plaintiffs are entitled to damages.”

12. I have perused the entire judgment, I cannot see a single authority or binding precedent or section of the Law relied on. There is no analysis of facts to find the correct position and no definition of what constitutes malicious prosecution and unlawful arrest.

13. The elements of malice are also not adumbrated. It is a judgment without a finding. This Court is supposed to peruse the record and see the consideration on the face of the record. The court is not supposed to encompass, surmise or engage in hyperbole in establishing evidence the court relies on. None of evidence is seen so far from the record. The judgment will leave parties, even the winning one at cross road.

14. They will say they have won, but they will be hazy on facts. I am unable to find the findings of the Court. What is disturbing is, that the judgment is not written by newly recruited Magistrate who is going through a learning curve. It is by a highly qualified Chief Magistrate of long standing. That judgment can disturb a mind of a reader. If does not instill confidence in the courts and give the loser a raison d’etre to accept. This could be the basis of the unseemly memorandum of Appeal. It is not to justify the kind of drafting I have seen, but it is to contextualize, problematize and conceptualize the basis for the kind of memorandum of Appeal that should never see the light of day. It is my view that advocates should take time to reflect before filing a memorandum of appeal. After all, they have a whopping 30 days to do so.

15. I agree that something may be moved by the sentimentality of situations especially arising from power relationships and go overboard. However, analysis of the law and keeping to the fidelity of the law is crucial. I recall the words, of the Supreme Court at paragraph 394 of the Presidential Petition No. 1 of 2017, Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions) (20 September 2017) (Judgment) (with dissent - JB Ojwang & NS Ndungu, SCJJ), the court stated as doth: -“It is also our view that the greatness of a nation lies not in the might of its armies important as that is, not in the largeness of its economy, important as that is also. The greatness of a nation lies in its fidelity to the Constitution and strict adherence to the rule of law, and above all, the fear of God. The Rule of law ensures that society is governed on the basis of rules and not the might of force. It provides a framework for orderly and objective relationships between citizens in a country. In the Kenyan context, this is underpinned by the Constitution.”

16. It is therefore crucial that at all times we remain to the oath of office and not be moved by mercy and compassion to trump upon the law. Given the nature of the claim, it is imperative that I analyse the facts afresh, recall my own conclusion. I am handicapped on only one aspect, the court which had the witnesses did not form opinion on their dememanor. The Court equally did not find who was telling the truth and half-truth.

17. There are no finding of fact, which will be binding on the Court. there is a huge lacunae left by the unmasked facts and evidence.

18. I am getting surprised that making a report to the police is a crime. It is not enough that a report be made. The report has to be made maliciously. It is not enough to find on the plaintiff’s case. There has to be a finding first on the burden of proof, discharge of the burden and the finding by the Court on the Defence.

19. In Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] [Supra] (Election Petitions) (20 September 2017) (Judgment) (with dissent - JB Ojwang & NS Ndungu, SCJJ), the supreme court stated as doth regarding the burden of proof.“The common law concept of burden of proof (onus probandi) is a question of law which can be described as the duty which lies on one or the other of the parties either to establish a case or to establish the facts upon a particular issue.46 Black‘s Law Dictionary47 defines the concept as [a] party‘s duty to prove a disputed assertion or charge….[and] includes both the burden of persuasion and the burden of production. With that definition, the next issue is: who has the burden of proof"

20. The evidence on record also deals with acquittal. It is necessary to make a definite finding on Acquittal over Section 215 or discharge under 210 of the Criminal Procedure Code.

21. Regard also has to be had of the surrounding facts and the circumstances obtaining given that there is a disconnect between the burdens of proof. Finally, there has to be a causal link between any action by a party and the results without this move from the realm of judicial decisions to awarding. As the Thomas Hobbes one stated in his treatise, the Leviathan,‘no arts no letters, no society and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary poor, nasty, brutish and short. In that state of anarchy, freedom is curtailed and the courts have no role to play. What was the case in court? Who were parties? There was only one plaintiff. Kadzo Mumba Ngolo.

22. Though indicates to have had 6 others they are not named. Order 1Rule 1 provides who may be joined as parties. It provides as doth: -“Who may be joined as plaintiffs [Order 1, rule 1. ] All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.”

23. Where a party intends to file a representing suit, he is entitled to do so under order 1 Rule 8. The same provides as doth: -“One person may sue or defend on behalf of all in same interest [Order 1, rule 8. ] (1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. (2) The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. (3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.It is therefore lawful to file a representative suit. However, it must indicate so. Every plaintiff is enjoined to sign a verifying affidavit signaling their intention to sue.’

24. Where the Court got the names of the 2nd to 7 plaintiffs is a mystery. There was only one party in this matter who was not a plaintiff. He did not testify.

Proceedings 25. On 9/9/2019, the plaintiff withdrew the suit against the Attorney General. It was withdrawn with no order as to costs. James Obura testified and produced PCR 147 of 2014.

26. PW2 was Anderson Chea. He stated he was the plaintiff. He adopted his evidence. The case was closed.

27. The case was re- opened on 2/3/2021. The plaintiff stated he had authority to file the case. He had no document to show that the respondent was arrested over is his land. In re- examination he stated it is community land.

28. DW2 testified, that is Ishamael Kahaso Kapene. He worked with the Appellant. He produced his documents as exhibits 1- 5. He worked as a security supervisor. He reported that there were people planting in their farm. He reported their public relations officer who reported to the police. On cross examination he stated her left the company in June 2020. He did not know who was arrested. Their case was closed.

29. The court then proceeding to enter judgment for malicious prosecution. This is resulted in this appeal.

Submissions 30. The parties were directed to file submissions which they duly did. I have considered the same together with the submission filed in the court below.

31. It should be recalled that the suit in the lower court was filed on 8/8/2018. The plaint does not indicate the date of acquittal except to say that it is after 2 years of agony stress and mutual torture.

Appellants submissions 32. In the lower court, the appeal filed submission dated 18/3/2021. They relied on Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLR, where Justice Mativo J. describes as false arrest as doth: -“civil wrong consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another person purporting to act according to the law. The term false arrest is sometimes used interchangeably with the tort of false imprisonment, and a false arrest is one method of committing a false imprisonment.

33. On malicious prosecution they relied on Jackson Muthui Maluki & another v Attorney General [2020] eKLR, where the Court, Justice Richard Mwongo at page 3 stated as doth: -‘as a general rule an arrest of a suspect should not be made unless and until his or her case has been investigated and the arresting officer believes there are reasonable grounds for suspecting that the suspect has committed an offence. This is the minimum statutory criteria set out under Section 29 of the Criminal Procedure Code. The provision gives power to a police officer to make an arrest without warrant in the following terms:“29. A police officer may, without an order from a magistrate and without a warrant, arrest—

(a)any person whom he suspects upon reasonable grounds of having committed a cognizable offence;…”

34. They relied on the case of Alex Muturi Muriithi v Peter Mbogo & another [2015] eKLR, where Justice Florence Muchemi, the Court relied on the law and principles governing malicious prosecution were explained in the case of MbowaEast Mengo District Administration[1972] EA 352 by the former Eastern African Court of Appeal expressed itself as follows:-“The action for damages for malicious prosecution is part of the common law of England...The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit. It originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings...It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth. Its essential ingredients are: (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..........''The above principles were restated in the case of MurungavsAttorney General [1979] KLR, 138 as follows:-a.That 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.d.That the prosecution was actuated by malice.”

35. They also indicated that the Court of Appeal has elucidated on the same. However, they have not stated on which authority.

36. Further they stated that the plaintiffs never made a case for false imprisonment.

37. They relied on Catherine Wanjiku Kariukiv Attorney General& another [2011] eKLR where thro court stated as doth:-“It is the duty of every citizen to report to the police any crime suspected, upon reasonable ground, to have been committed, or being committed, or about to be committed. Once that civic duty is done, it is the business of the police to independently investigate the matter and arrive at their own conclusion whether any crime has been committed, is being committed or is about to be committed, and whether to charge anyone with such crime. The further role of any person making the initial report or complaint to the police can only be that of a witness.In their investigations, the police will not be under the control or direction of the person reporting the crime or the complainant. Whether to charge or prosecute anyone with any reported crime will be the independent decision of the police investigating the matter. It will not be the decision of the complainant. See the case of Nyaga –vs- Mucheke 1987 [LLR 271] (CAK). In that case the Court of Appeal stated:“The appellant having reported to the police about the respondent’s action of damaging his crops, the police took over the matter to investigate the respondent for a possible offence ….Once the appellant gave the report, he ceased to have anything to do with the matter….”But courts have had occasion to hold that the person who sets in motion, without reasonable and proper cause, the legal machinery that ultimately leads to prosecution of the complainant, can be deemed to have prosecuted him. See the cases of Gitau v East African Power & Lighting Limited [1996] KLR 365 and Kariuki v East Africa Limited & Another [1996] KRL 683.

38. They relied on a myriad of authorities on the same point. The Court did not see the need or wisdom to consider binding precedent before it.

39. The appellant filed submission dated 4/7/2023. They are 21 pages. There is neither time nor space to regurgitate the same herein. They submitted that the case of malicious prosecution was not proved. They state that the respond has a duty to show that the prosecution was instituted by the defendant. They placed reliance on Gitau =vs= Attorney General Nayaganu Lourd Prakash v Standard Chartered Bank 2000 (10) TMI 968. They asked that we allow the appeal.

40. The Respondent filed a Response and stated that the resident proved their case. They also relied on the case of Mbowa v Easy Mengo Administration (Supra).

41. They are of the view that the Appellant was lying as they are the ones who reported and they confirmed that during the trial they stated that the second element, without a reasonable or probable cause, was proved. The appellant quoted in extension the case of Margaret Ndege & 3 Others v Moses Oduor Ademba [2011] eKLR.

42. They state that the plaint was filed and properly named in plaint dated 7/8/13. They state that they are described in the plaint was as per the Civil Procedure Rules on the issue whether there was an error in allowing the Ag to be of the case, they stated that the same is proper under Order 5 Rule 1.

43. On this they relied on Samuel Wambugu Mwangi =vs= Othaya Boys High School, Nyeri [2014] eKLR on whether the Court considered the principles of malicious prosecution they state that the court considered to the same. They pray that the appeal be dismissed with costs to the “Respondents”.

Analysis 44. It will be a tragedy of cataclysmic proportions if the court does not conceptualize, problematize and contextualize the genesis of the legal imbroglio in Court today. This is both for the benefit of the parties and posterity. The parties must remember that for any wrong for a party to be liable there has to be causation.

45. The first question is that needs to go out of the way is whether the withdrawal against the AG was proper. That decision was made by consent of the parties. Further it was made on 9/9/2019. The only time the same could be Have been changed was by 9/10//2019 by dint of Section 79G which provides as doth: -“79G. Time for filing appeals from subordinate courts Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

46. There has to be an application to set aside a consent order. That application can only be allowed if the applicant meets the requirements set but in the law and precedent, that is on the same grounds that a contract can be set aside. This was so held in the case of Flora Wasike v Destimo Wamboko [1988] KLR 42, where Hancock J.A. as he was then stated: -“It is now settled that a consent judgment or order has contractual effect and can only be set aside on goods which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.

47. This follows an earlier decision of the former Court of Appeal for Eastern Africa in Brook Bond Liebig v Mallya (975) EA, 266, where they stated that a consent judgment may only be set aside for fraud, collusion, or for any reason that which would enable the court set aside an agreement.

48. Finally in Hirani v Kasam [1952] EA 19 EACA 131, the Court of Appeal stated as doth:-“Prima facie, any order made in the preference and the consent of Counsel is binding on those claiming under them and cannot be varied or discharged, unless obtained by fraud to conclusion of contrary to the policy of the court.”

49. No such agreement has been sought to be set aside and as such the Attorney General no longer a party to those proceedings. The second question is to determine who the parties are. Though described in the body, of the plaint they are indicated to have been accused person. The only plaintiff in the matter wa Kadzo Ngumbao Ngolo. There was no authority filed to grant him any power to prosecute the case.

50. In spite of that, only Anderson Chea testified. He is neither the plaintiff nor party. The plaintiff who filed and verified the suit, Kadzo Ngumbao Ngolo did not testify. Even if we were to assume that all the named accused also because plaintiffs, they did not testify. Where a party does not testify, this claim becomes otiose. Each of the person who wanted to be the plaintiff should have testified. Malicious prosecution is personal. It is not something that can be delegated like defamation it goes to the core of the person. In the case of Simeon Nyachae v Lazarus Retemo Musa and Kalamika Ltd, the Court stated as doth:-“In my view a representative witness cannot maintain or continue the action instigated by a party, so that the party can achieve or derive some substantial benefits/rights. It is for the plaintiff to prove the publication was meant to injure and has actually injured his reputation if he wants the intervention of the court.It is my decision that it is the legal duty of litigants to prove the allegations set down in their pleadings. And it would be unreasonable for PW1 to attest to the contents of a plaint filed by the plaintiff, simply because he was given power of attorney by the plaintiff. Once a party expresses a case of defamation, he is expected to show in detail the statement was against his character, dignity and reputation.

51. This the stage where any claim by the all the person except Andeyo Chea ought to have been dismissed, in limine.

52. Though I have found, that Anderson Chea was not a plaintiff for academic purposes I shall proceed with the rest of the issues. Though courts should not deal with issue for academic purposes, I must recall that the lower court did not analyse evidence, nor make finding of fact. This is crucial in case there is a second appeal that that there be established facts, on the record as a second appeal is on points of law.

53. This is a shield in the case of Ms Otieno Ragot and Company Advocates v National Bank of Kenya Limited [2020] eKLR, where the court stated–“This is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”

54. The appellant’s employees reported trespass to the police. It is the duty of every citizen to do so. This was vide OB 14/23/5/14. The duty of the Appellant ended there. The police investigated and the ODPP recommended that accused person be charged. To them the complaint met the threshold for preferring criminal charges. The witness testified. On 16/3/2016, the court, in its wisdom, found that the accused had a case to answer.

55. In other words, by being put on their defence, a prima facie case had been established by the prosecution. in the civil standards, prima facie means a case pointing toward establishing the legal question being looked into. in the case of Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR, the court of Appeal, Kwach, Bosire & O’Kubasu JJ A, stated as doth:-“4. A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”in the case of Republic v Robert Zippor Nzilu [2020] eKLR

56. The Justice, G V Odunga J,as he was then, stated as follows: -“2. I have considered the material on record as well as the submissions made on behalf of the accused in this ruling where the court is being called upon to decide whether or not the prosecution has made out a prima facie case against the accused that would warrant this court to call upon him to give their defence. In other words, does the accused have a case to answer? In Republic vs. Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

57. Therefore, to be put on the defence, there has to be some “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. ipso facto, it means there was probable cause of reporting the case. the alternative of holding extremely high standards, is that parties will cease from reporting cases and use self help to primitively appeal to their primordial senses and resolve case brutally.

58. This will move the case the case from judicial realm to the Hobbesian state where parties appeal to their primordial state. this is what Thomas Hobbes once stated in his treatise, the Leviathan,‘no arts no letters, no society and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary poor, nasty, brutish and short. In that state of anarchy, freedom is curtailed and the courts have no role to play.

59. The Court will use ordinary cause of nature and deal a probable cause and 67 of Silvia Kambura v George Kathurima Japhet & 2 others [2021] eKLR, where the court stated in the case of Silvia Kambura v George Kathurima Japhet & 2 others [2021] eKLR where they stated: -The Court considers that to “an ordinary reasonable prudent and cautious man,” in the words of Rudd J, in Kagane & Others vs The Attorney General & Another (1969) EA 643, the fact of there being 2 eye witnesses who testified to have seen the 1st Respondent destroying the property and who knew the property on which the damage occurred to belong to the Appellant, created an honest belief of the 1st Respondent’s guilt. This Court considers that based on the materials presented, including the Appellant’s own testimony as to ownership of the land, the prosecution cannot be said to have been done without reasonable and probable cause. The Court also considers that there was no evidence of malice on the part of the Prosecution or the Appellant. The Court, therefore, finds that the 3rd and 4th elements of the tort of malicious prosecution were not proven.

60. In the case of James Karuga Kiiru v Joseph Mwamburi & 3 Others [2001] eKLR, the court held that the proposition that to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is. He cites Mbowa v East Mengo District Administration [1972] EA 352, for the proposition that the tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings and that the purpose of the prosecution should be personal and spite rather than for the public benefit. He also cites Murunga v The Attorney General [1979] KIR 138 for the ingredients of malicious prosecution.

61. They were put on their defence. It is only after they defend themselves that the court they alleged that they did not trespass. They were on community land. To the prosecution, the said land belonged to the appellant. The Court faced with such, in a criminal case, has one duty, to give the benefit of doubt to the accused.

62. The benefit of doubt is explained by Justice John M. Mativo J as then he was in JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR) (7 April 2022) (Judgment) as doth: -“To me, the defence raised by the appellant and the complainant’s attempt to dissociate herself from the charges, raises reasonable doubts on the prosecution case. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge. This is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.”

63. The Court was raising an issue on how the police took over investigations on a matter that was not reported. The police never went to the scene and photos of the scene of crime got exposed. The court blamed the police for swooping over the general area.

64. The blame was squarely on the police. The respondent in his wisdom withdrew the case against the Attorney General. He is the only one who can be liable for police behavior.

65. Secondly by dint of being put on their defence, there was a probable or prima facie case against the accused. Ipso facto, there can be no malicious prosecution where there is a case to answer. A repartee does not have a duty to counter check whether his evidence can meet the criminal threshold.

66. The citizens have a duty to report. It is a good thing. Otherwise parties will take the law into their own hands. It means, upon the Court finding there is a case to answer, there is a probable cause. The Complainants are not trained to determine whether there is a probable case. They report for people who took 6 years learning where to find the law, to make decision on a probable cause and a decision to charge. A Complainant has no control over that.

67. In the case of Okiya Omtatah Okoiti v Director of Public Prosecutions; Inspector General of National Police Service & another (Interested Parties) International Commission of Jurists (Kenya Section) (Amicus Curiae) [2022] eKLR, justice W. Korir, stated as doth: -“202. That the DPP has discretion on the decision to charge was indeed affirmed by the Court of Appeal in Diamond Hasham Lalji & another v Attorney General & 4 others [2018] eKLR when it stated at Paragraph 30 that:“…The DPP has formulated “The National Prosecution Policy” 2015 which repealed the 2007 prosecution policy. The policy, amongst other things, stipulates the factors to be taken into account before a decision to prosecute or not to prosecute is taken including the application of evidential test and public interest test and also the factors to be considered before a review of the decision to prosecute or not to prosecute is made.”

203. I agree with the findings in the cited decisions that the investigating officer cannot under whatever circumstances usurp the role of the prosecutor.”

68. This means neither the Complainant nor the Investigator are responsible for prosecution. Once the Appellant was placed on his defence, his goose was cooked, fried and eaten. It will be pretentious to analyse the rest of the evidence upon the finding that they had a case to answer. The surrounding circumstances, equally vindicate the court.

69. A mere fact that a person has been acquitted without more is not a ground to sue for malicious prosecution. This is because the test as set out, correctly in my view, relying on the case of George Masinde Murunga v Attorney-General [1979] eKLR, where justice E. Cotran, as then he was stated as doth: -“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.”

70. There was judicial determination that the Appellant had a case to answer. A case to answer, was held to mean, in the case of Republic v Robert Zippor Nzilu [2020] eKLR, that:-“1 have considered the material on record as well as the submissions made on behalf of the accused in this ruling where the court is being called upon to decide whether or not the prosecution has made out a prima facie case against the accused that would warrant this court to call upon him to give their defence. In other words, does the accused have a case to answer? In Republic v Abdi Ibrahim Owl [2013] eKLR a prima facie case was defined as follows: -“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence…It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

71. In the case of Ronald Nyaga Kiura vs. Republic [2018] eKLR, the Court held follows:“22. It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat -vs- Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

72. This means that the prosecution had evidence, which is not worthless or just a scintilla of evidence.

73. The termination in favour of the Appellant applies at the case to answer stage. It is not always that all cases terminated at the case to answer are to be taken as malicious. It could simply because there was sloven prosecution.

74. This appeal must fail. The claim for malicious prosecution must be made against parties who did the prosecution. Secondly there must be no probable cause for instituting the case. In this case, the court found, under Section 210 of the Criminal Procedure Code that the Defendants had a case to answer.

75. A prima facie case in civil terms was defined in the case of Mrao Ltd. v First American Bank of Kenya Ltd. & 2 Others [2003] eKLR as doth: -“4. A prima facie case in civil application includes but is not confined to a “Genuine and arguable case”. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

76. It means, upon the Court fining there is a case to answer, there is a probable cause. The complainants are not trained to determine whether there is a probable case. They report for people who took 6 years learning where to find the law, to make decision on a probable cause and a decision to charge. A complainant has no control over that.

77. In the case of Okiya Omtatah Okoiti v Director of Public Prosecutions; Inspector General of National Police Service & Another (interested parties) International Commission of jurists (Kenya Section) (Amicus Curiae) [2022] eKLR, Justice W. Kori, stated as doth: -“202. That the DPP has discretion on the decision to charge was indeed affirmed by the Court of Appeal in Diamond Hasham Lalji & Another v Attorney General & 4 Others [2018] eKLR when it stated at paragraph 30 that:

“… The DPPP has formulated “The National Prosecution Policy” 2015 which repealed the 2007 prosecution policy. The policy, amongst other things, stipulates the factors to be taken into account before a decision to prosecute or not to prosecute is taken including the application of evidential test and pubic interest test and also the factors to be considered before a review of the decision to prosecute or not to prosecute is made.” 203. I agree with the findings in the cited decisions that the investigating officer cannot under whatever circumstances usurp the role of the prosecutor.”

78. This means neither the Complainant nor the Investigator are responsible for prosecution. Once the appellant was placed on his defence, his goose was cooked, fried and eaten. It will be pretentious to analyse the rest of the evidence upon the finding that they had a case to answer. The surrounding circumstances, equally vindicate the court.

79. A mere fact at a person has been acquitted without more is not a ground to sue for malicious prosecution. This is because the test as set out, correctly in my view, relying on the case of George Mainde Murunga v Attorney General [1979] eKLR, where Justice E. Cotran, as then he was stated as doth: -“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; and4. That it was actuated by malice.”

80. There was judicial determination that the Appellant had a case to answer. A case to answer, was held to mean, in the case of Republic v Robert Zipor Nzilu [2020] eKLR, that: -“I have considered the material on record as well as the submission made on behalf of the accused in this ruling where the court is being called upon to decide whether or not the prosecution has made out a prima facie case against the accused that would warrant this court to call upon him to give their defence. In other words, done the accused have a case to answer? In Republic vs Abdi Ibrhaim Owl [2013] eKLR a prima facie case was defined as follows: -“Prima facie “is a latin word defined by Black’s Law dictionary 8th Edition as “sufficient to establish a fact or raise a presumption unless disproved or rebutted”. ‘Prima face case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlalal Trambaklal Bhatt v R [1957] EA 32 at 334 and 335, the Court stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one ‘which on full consideration might possibly be thought sufficient to sustain a condition.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evident can never be enough; nor can any amount of worthless discredited evidence… It may not be easy to dine that is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly discretion its mind to the law and the evidence could convict if no explanation is offered by the defence.”

81. In the case Ronald Nyaga Kkiura v Republic [2018] eKLR, the Court held follows:“22. It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provision of Section 21 1 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict. If no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case Ramanlal bhat =vs= Republic [ 1975] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”

82. This means that the prosecution had evidence, which is not worthless or just a scintilla of evidence. The termination in favour of the Appellant applies at the case to answer stage. It is not always that all cases terminated at the case to answer are to be taken as malicious. It could simply because there was sloven prosecution.

83. The suit has already being dismissed. However, it is imperative that when a claim is dismissed quantum be assessed. In this case only Anderson Chea testified. He was awarded 50,000/=. The same is modest. Had he had. I suit and succeeded, the amount is proper.

84. The rest of the so called plaintiffs never testified. They did not prove any injury. Consequently, I set aside the award of Kshs. 50,000/= to each of them. Even if I had found the appellant liable, the award of damages could not be awarded as they did not testify. The suit is bare. I will have dismissed prayers for damages.

Quantum 85. The duty is of the court is settled as regards quantum. The court cannot therefore with the award of damages unless the same is contrary to principles laid in the case of In the case of Mbogo and Another v Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

86. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Servcie v A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

87. Damages were not proved at all. The Court is under duty to assess costs. however, due to lack of evidence, there was nothing placed before the court to be able to assess any damages. the plaintiff did not testify. In the case of Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR, the court repeated the oft held principle regarding assessment of damages even if he court being under duty to assess damages, even if the case is dismissed. This was succinctly put forth as thus: -“Turning to issue No. 2, the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No 124 of 1993 (UR). The court made the following observations on this issue:“The judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment”

88. In the circumstances, the appeal herein is wholly merited. Therefore, I allow the same in its entirety, set aside judgment in the lower court. In lieu thereof I substitute the same with an order of dismissing the suit with costs.

Determinationa. The Appeal herein is allowed in its entirety.b. The Judgment enter in Malindi CMCC 241 of 2018 is set aside in toto, and in lieu thereof I substitute the same with an order dismissing the suit in limine with costs to the Appellant.c. The appellant shall have costs of this appeal of Kshs. 85,000/=d. The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Ms Anyango for the AppellantMs Onkoba for the RespondentsCourt Assistant - Brian