[2018] KEHC 9777 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL APPEAL NO 30 OF 2012

LYDIA NJERI WANGONDU.......................................................APPELLANT

VERSUS

FELISTA WANJIKU..........................................................1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL.............2ND RESPONDENT

(Being an appeal from the Judgment and Decree ofHon L.W. Wachira (Mrs),

Senior Resident Magistrate (SRM)at the Chief Magistrate’s Courtat Thika

in Civil Case No 364 of 2007delivered 10th January 2012)

JUDGMENT

INTRODUCTION

1. In her decision of 10th January 2012, the Learned Trial Magistrate, Hon. L.W. Wachira (Mrs), Senior Resident Magistrate (SRM) dismissed the Appellant’s suit.

2. Being dissatisfied with the said decision, the Appellant filed her Memorandum of Appeal dated 8th February 2018 on 9th February 2018. Her Record of Appeal and Supplementary Record of Appeal were both filed on 17th March 2015.

3. The Appellant filed her Written Submissions dated 14th July 2018 and filed on 17th March 2018. The 1st Respondent’s Written Submission were dated and filed on 19th September 2018 while those of the 2nd Respondent’s Written Submissions were dated 31st August 2018 and filed on 1st September 2018.

4. When the parties appeared before this court on 20th September 2018, they asked it to render its decision based on their respective Written Submissions which they were relying upon in their entirety. The Judgment herein is therefore based on the said Written Submissions.

THE APPELLANT’S CASE

5. The Appellant’s case was that the Learned Trial Magistrate erred when she dismissed her case yet she had proven the same on a balance of probabilities. She was categorical that the criminal proceedings instituted against her by the 1st Respondent had been accentuated by malice, ill will and improper motive.

6. She pointed out that she had demonstrated that the 1st Respondent only paid a deposit of Kshs 90,000/= for two (2) plots she (the Appellant) was selling to her at a sum of Kshs 160,000/=. She added that the transfer fees was Kshs 12,000/= and that despite her advocates writing to the 1st Respondent to pay the balance of Kshs 70,000/= and the transfer fees of Kshs 12,000/=, totaling to Kshs 82,000/=, the 1st Respondent never paid the same.

7. She averred out that her advocates demand was clear that in the event the 1st Respondent did not pay the said sum, then the sale would be rescinded but instead, the 1st Respondent went and reported the matter to the Criminal Investigations Division (CID).

8. She argued that the 1st Respondent failed to attend court on numerous occasions when the matter had been listed for hearing and that she (the Appellant) declined the 1st Respondent’s overtures to withdraw the suit as she wanted the same heard and determined.

9. She denied of having been guilty of obtaining money by false pretenses and added that when the 1st Respondent defaulted in paying the entire purchase, one of the plots was registered in her name while the other was repossessed and sold to another buyer

10. She was emphatic that the 1st Respondent did not adduce any evidence to controvert the evidence that she adduced in court and consequently the Learned Trial Magistrate took into account extraneous matters that there were several cases of double allocation of plots that had been leveled against her.

11. She added that the Learned Trial Magistrate erred in her finding that there was no grudge between her (the Appellant) and the 1st Respondent because the complaint came long after the 1st Respondent had procured double registration of the disputed plots had been repossessed and sold to other third parties.

12. She also stated that the Learned Trial Magistrate erred by contending that failure by witnesses failing to come to court to testify and the absence of a police file were not enough to have founded a case of malicious prosecution. She averred that the criminal case was decided in her favour and in this regard, she relied on the case of Nyeri HCCA No 27 of 2014 Stephen Gachau Githaga vs Margaret Wambui Weru vs Another in which it was held as follows:-

“The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay.

13. She therefore urged this court to allow her Appeal and award her a sum of Kshs 600,000/= general damages.

THE 1ST RESPONDENT’S CASE

14. The 1st Respondent contended that there was no tort in law known as malicious false report and in the circumstances, the Appeal herein would automatically lapse. She added that she was not the one who prosecuted the Appellant and she had no powers to prosecute her.

15. She stated that she reported the matter to the police because after she conducted a search on the two (2) plots she had purchased from the Appellant at the Lands Office, she established that the same had been registered in the name of another person. She also averred that she found the Appellant already arrested after another complaint had been lodged by one Alex Kiguru.

16. She indicated that she was never summoned to testify and that in any event she never expressed a desire of withdrawing the case against the Appellant. It was her submission that the Trial Court found that she had lost money in transactions and that she then had reasonable grounds to have reported the matter to the police.

17. She therefore urged this court to dismiss the Appellant’s Appeal as her report to the police was not malicious.

THE 2ND RESPONDENT’S CASE

18. The 2nd Respondent submitted that the Trial Court relied on the evidence that was adduced to arrive at the conclusion that it did. He added that the Appellant had not demonstrated that the Trial court did not consider the evidence.

19. He pointed out that the 1st Respondent paid money to the Appellant’s agent and argued that since the acts of an agent bound the principal, to any reasonable and prudent man, the 1st Respondent had a reasonable cause of action.

20. He added that the Appellant and the 1st Respondent had a dispute prior to her arrest, which dispute was not resolved amicably and hence the 1st Respondent used the correct authority to pursue her cause of action. He pointed out that the Appellant did not demonstrate that she went to the Independent Police Oversight Authority (IPOA) to complain about the malicious prosecution and that in any event, she refused the 1st Respondent to withdraw the criminal case against her and had acted as though she (the Appellant) wanted to teach her a lesson.

LEGAL ANALYSIS

21. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand.

22. This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd[1968] EA 123and Peters vs Sunday Post Limited [1985] EA 424 where in the latter case, the court therein rendered itself as follows:-

“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

23. Further, as was held in the case of Kenya Ports Authority vs Kushton (Kenya) Ltd [2009] 2 EA 212 that was relied upon by the Appellant:-

“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with the parties in the evidence”.

24. Having looked at the parties submissions, it appeared to this court that the issue that had been placed before it for consideration were:-

1. Whether or not the Learned Trial Magistrate was justified in having dismissed the Appellant’s suit against the 1st Respondent for malicious prosecution.

2. If so, what was the quantum of damages payable to the Appellant.

25. In her Plaint dated 16th April 2007, the Appellant had sought the following reliefs:-

a. Special damages of Kshs 15,000/=.

b. Damages for malicious false report, wrongful arrest and confinement and malicious prosecution.

c. Interest on a) and b) above at court rates.

d. Costs of this suit and interest thereon at court rates.

e. Any other relief as this Honourable Court may deem just and fit to grant.

26. In her evidence adduced in the lower court, the Appellant told the Trial Court that she was charged in Thika Criminal Case No 1579 of 2006after the 1st Respondent lodged a complaint against her on 10th April 2006 vide OB No 20 for obtaining money by false pretenses. The case was heard and she was acquitted under Section 210 of the Criminal Procedure Code Cap 75 (Laws of Kenya).

27. She had testified that she jointly owned the plots namely Thika Municipality Block 20, 4953/2584 and Block 4953. 2585 with Dickson Muiruri Mwangi and Francis Arap Sang. Since she had no knowledge of land transactions, she appointed Alfred Wathigo as her agent and he is the one who would receive money.

28. She added that instead of purchasers paying the balance of monies so that they could transfer the parcels of land to them, they reported the matters to CID. She was emphatic that she declined the Appellant’s overtures to withdraw the case against her as she did not sell the plots twice and she had in fact, sacked her agent from. She contended that she would not have been arrested if the 1st Respondent had not reported her to the police.

29. On her part, the 1st Respondent testified that she bought Plot No 218 through the Appellant’s agent, Alfred Wathigo and she paid the full purchase price. She also purchased Plot Nos 245 and 290 for other people and paid the purchase price in full. She reported the matter to the police after she found that the plots had been registered in names of different people. She was categorical that her work was to report and for the police to investigate.

30. In her Judgment, the Learned Trial Magistrate observed that the 1st Respondent had lost money and she had reported to the police like any other complainant would have. She added that it was not in all cases where accused persons were acquitted they were innocent and that each case must be decided on its own merits.

31. She dismissed the Appellant’s case on the ground that the Appellant had not been able to prove that her arrest and prosecution were without any basis and concluded that the 1st Respondent’s actions were justified owing to the circumstances of the case.

32. This court perused the proceedings from the Thika Criminal Case No 1579 of 2006 Republic vs Lydia Njeri Wangondu and noted that the Learned Trial Magistrate Hon. L.W. Gicheha therein, had directed that the case be heard within a period of six (6) months. When the matter came up on 13th February 2007, the Prosecutor sought to withdraw the case under Section 87 (a) of the Criminal Procedure Code as witness had not been traced.

33. This was vehemently opposed by the Appellant’s counsel who asked that the Appellant be acquitted under Section 202 of the Criminal Procedure Code. The Learned Trial Magistrate then acquitted her under Section 210 of the Criminal Procedure code as no evidence had been tendered by the Prosecution witnesses.

34. It is worthy of note that the aforesaid criminal case did not proceed for hearing. It was terminated after no evidence was adduced in court. In the circumstances, foregoing, it would have been difficult to say with certainty whether or not the 1st Respondent had reported the Appellant to the police maliciously and/or whether or not the Appellant had been guilty as charged or if she was innocent of the charges.

35. Since the 1st Respondent had no prosecutorial powers, she could not have been found liable for having prosecuted the Appellant. Indeed, as she rightly pointed out, her responsibility ended with her reporting the matter to the police, who in turn would investigate the case and determine if the complaint had disclosed an offence under the Penal Code Cap 63 (Laws of Kenya).

36. Going further, the 2nd Respondent was in the chain of administration of justice. He could not be said to have been malicious for prosecuting the Appellant as he was relying on the evidence that had been gathered by the police. He

37. In the absence of proof of malice on the part of the 1st Respondent, the police or 2nd Respondent, the Appellant could not be said to have proved her case on a balance of probabilities. For her case to succeed, she was expected to have demonstrated malice on the part of those in the chain for administration of justice.

38. According to the Blacks Law Dictionary 10th Edition, “malice” is defined as:-

“The intent, without justification or excuse to commit a wrongful act”.

39. Accordingly, having considered the parties’ respective Written Submissions and the case law that was relied upon by the Appellant, this court came to the conclusion that the Learned Trial Magistrate did not apply the wrong principles to arrive at the decision that she did.

40. The Appellant failed to demonstrate that the criminal proceedings were instituted against her for an improper purpose and without any reasonable or probable cause. As was held in the case of Nzoia Sugar Co Ltd vs Fungututi [1988] KLR 399 that was relied upon by the 2nd Respondent, there was no proof of existence of spite or ill-will in the 1st Respondent having reported the matter to the police. The fact that the criminal case was terminated against her did not confirm that her innocence had been established as the case was not heard on merit.

41. This court considered the cases of Margaret Mbugua vs Kirk Mweya Nyaga [2016] eKLR, Stephen Gachau Githaiga & Another vs Attorney General [2015] eKLR amongst other cases that were relied upon by the Appellant herein and found that the facts were distinguishable from the facts herein and could not therefore assist her case herein.

DISPOSITION

42. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 9th February 2018 was not merited and the same is hereby dismissed. The Appellant will bear the Respondents’ costs of the Appeal.

43. It is so ordered

DATED and DELIVERED at NAIROBI this 27th day of November 2018

J. KAMAU

JUDGE