[2022] KEHC 26918 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

APPELLATE SIDE

(Coram: Odunga, J)

CIVIL APPEAL NO.21 OF 2018

MMS.........................................................................................APPELLANT

VERSUS

BENJAMIN MUTUA MATOLO.................................1ST RESPONDENT

THE HON. ATTORNEY GENERAL.........................2ND RESPONDENT

(Being an appeal from the Judgment of the Senior Resident Magistrate’s Court at Machakos before Hon. Kahuya (I.M) delivered on the 1st day of February, 2018 in Machakos CMCC No.768 of 2010)

BETWEEN

BENJAMIN MUTUA MATOLO..........................................................PLAINTIFF

VERSUS

SMN (Sued as the Father and next of kin of MMS (Minor)....1ST DEFENDANT

THE HON. ATTORNEY GENERAL.......................................2ND DEFENDANT

JUDGEMENT

1. By an Amended Plaint dated 21st August, 2009 and filed on 29th August, 2009, the 1st Respondent herein, Benjamin Mutua Matolo, sued SNN, in his capacity as the father and guardian ad litem of the Appellant together with the 2nd Respondent, the Honourable Attorney General, for malicious prosecution. The Cause of action arose from Makueni Criminal Case No.531 of 2008 where the 1st Respondent was charged with the offence of assaulting MMS (Minor), the Appellant but was acquitted under Section 210 of the Criminal Procedure Code. The 1st Respondent claimed general damages and exemplary damages, special damages of Kshs. 468,000/- and costs of the suit and interest jointly and severally against the Appellant and 2nd Respondent.

2. According to the 1st Respondent, on or about 4th December, 2008, the Appellant’s father maliciously made a false report at Makueni Police station that the 1st Respondent had assaulted the Appellant. The 1st Respondent averred that he presented himself to the police on 5th December, 2008, was arrested and charged before Makueni Court on 8th December, 2008 vide Makueni PMCCR No. 531 of 2008. However, in a ruling delivered on 21st May, 2009 he was acquitted for lack of prima facie case. The 1st Respondent contended that the said prosecution was maliciously instigated by the Appellant’s father and the 2nd Respondent and he particularised the malice by the Appellant’s father and the 2nd Respondent, his representatives and/or agents as well as particulars of special damages claimed to have been suffered by him.

3. In his evidence, PW1 Benjamin Mutua Matolo, the 1st Respondent herein, as the Plaintiff, relied on his witness statement filed on 26th July, 2011 as his evidence in chief. According to the Plaintiff, on or about 4th December, 2008 some 3 children went to his shop at Wote and asked for 3 sodas and doughnuts. After he had served them one of the children, the Appellant herein, returned complaining that he had not given him the correct change but as this was not correct, he told them to leave and they obliged. One and half hours later, the Appellant’s father went to the shop with the Assistant Chief for the location, one Mrs Josephine Kavindu with the latter stating that she had a received a complaint that the 1st Respondent had stabled the Appellant with a knife. As the Appellant’s father became violent, the 1st Respondent called the police but by the time the police arrived, the Appellant’s father had left. After hearing what had transpired from the 1st Respondent, the police told him to report to the police station the following day. The following day, the 1st Respondent recorded his statement and returned to his shop. He was however, surprised when he was called on 8th December, 2008 by the same police officers and asked to appear in court on the same day where he was charged in Makueni PM’S Court Criminal Case No. 531 of 2008, with the offence of assault causing actual bodily harm based on a report made by the Appellant’s father. Upon taking plea, though he was released on bond by the court, he spent time in remand.

4. However, after hearing the case for the prosecution, the Court returned the verdict that he had no case to answer and acquitted him under section 210 of the Criminal Procedure Code. It was on that basis that he claimed the relief sought in the plaint.

Appellant/1st Defendant’s case

5. In his counterclaim, DW1, contended that as a result of the assault to the Appellant, the Appellant sustained actual bodily harm causing him to suffer loss and damage. The particulars of the injuries and special damages were pleaded therein though the amount incurred as special damages were to be furnished later. The Appellant’s father urged the trial court to dismiss the suit with cost and interest and make an award for general and special damages for the assault.

6. In their joint witness statement dated 14th October, 2011, which was adopted by the Appellant, they went to the 1st Respondent’s shop to buy soda and cakes but the 1st Respondent increased the prices of the cakes after the Appellant and his brother had eaten them. According to them, the 1st Respondent gave them incorrect change and on demand for the difference, the1st Respondent took a knife, assaulted the Appellant on the right hand, declined to return the disputed change and chased them from the shop. As a result, they reported to their father who was waiting in the car talking to the Assistant Chief, Jane Ndawa.

7. According to the Appellant, the 1st Respondent was rude to his father and the Assistant Chief upon being asked about the change and shouted telling them to report to the police. The 1st Respondent was reported to Makueni police station and the Appellant was treated for the injury sustained. According to them, the report to the police was neither false nor malicious and that the police conducted their investigations and they were only called in court as witnesses. Based on the injuries sustained by the Appellant, the Appellant sought damages for the same.

8. DW2, Winfred Mwende Wambua, a clinical officer at Makueni County Referral Hospital-Wote testified that she examined the Appellant and found a scratch inflicted by sharp object and exhibited the same.

9. DW3, Jane Ndegwa, the sub-chief, was on 4th December, 2008 with the Appellant’s father at the shopping centre when the Appellant, in the company of his brother and a friend, went to them crying alleging that he had been assaulted by the 1st Respondent. According to DW3, she saw an injury on the Appellant’s right hand which the Appellant alleged was inflicted by the 1st Respondent using a knife. At the 1st Respondent’s request, DW3 proceeded to the 1st Respondent’s chief and the 1st Respondent informed her that he had a quarrel with the said children after the children demanded the change from him though he had given them a more expensive cake than what they had requested. The 1st Respondent then threatened to assault her with a stick when she told the 1st Respondent that it was wrong for him not to have given the children what they had requested for. In the company of the children, DW3 left the shop and they took the Appellant for treatment after reporting the incident to the police.

10. It was her evidence that she was unaware of any grudge between the 1st Respondent and the Appellant’s father and that no false report was made to the police as what was reported was a true report of what transpire. In her view, there were grounds for the said report of assault to have been made. She insisted that the police were justified in charging the 1st Respondent.

11. DW4,SNN, the Appellant’s father filed his Statement of Defence and Counter claim dated 12th August, 2009 on the same date. According to his statement, on 4th December, 2009 he had gone to school to pick up his two sons, one of whom was the appellant. While there, the said two sons and a friend went and reported to him that the 1st Respondent assaulted the Appellant when they asked for the change after buying some snacks after which the 1st Respondent chased the children from the shop. By then the Appellant was bleeding on his right hand after allegedly being assaulted by a knife. DW4 who was with the assistant chief sent the children with the said assistant chief to go ad inquire from the 1st Respondent why the Appellant had been assaulted but the 1st Respondent told them to report him to the police if he had done anything wrong. As a crowd was gathering, they decided to leave and proceeded to Makueni District Hospital where the Appellant was treated and discharged, after reporting the matter to the police.

12. Later the 1st Respondent was summoned by the police and upon conducting investigations, he was charged in court. DW4 insisted that the report he made was true and was not malicious as he had no reason to do so. While admitting that the 1st Respondent as acquitted, it was his case that the acquittal was not because the report was false or malicious or that the 1st Respondent had not assaulted the Appellant but was based on technical issues of alleged inconsistencies in the evidence of the children. It was his position that there were reasonable grounds for the report to the police and for the prosecution and that the report he made to the police was true, honest and grounded on reasonable belief that the 1st Respondent assaulted the Appellant using a knife, the results whereof was a clear visible bleeding cut wound on the dorsal right hand.

13. It was his case that they were merely witness and were not the prosecuting authority. According to him, he was not responsible for and/or in control of the subsequent investigations, arrest, arraignment and prosecution of the 1st Respondent in court. He therefore denied all the particulars of malice against him as well as the particulars of special damages and loss.

14. After hearing the case, the Learned Trial Magistrate found that there was probable cause to cause the prosecution of the 1st Respondent and that from the evidence, the Appellant’s father was determined to fix the 1st Respondent and hence the exaggerated particulars of the offence and that he acted maliciously with the intent of putting the 1st Respondent behind the bars. She however found the 2nd Respondent not liable as he acted on what the Appellant’s father had reported. The Court then proceeded to find that liability was proven at the ratio of 50:50 between the 1st Respondent and the Appellant. She proceeded to award the 1st Respondent Kshs 450,000/- as general damages and Kshs 5,940/- as special damages less the said 50% contribution.

15. The Appellant is aggrieved by the trial magistrate judgement. In this appeal, the Appellant has raised the following grounds:

(i) The learned trial magistrate erred in law and in fact in finding judgement for the Plaintiff when a cause of action for malicious prosecution was in law in fact not proved in light of her specific finding that the Plaintiff was prosecuted on reasonable and probable cause which finding alone was sufficient to dismiss the Plaintiff’s case, a cause of action for malicious prosecution having been totally negated.

(ii) The learned trial magistrate erred in fact and in law by failing to correctly, sufficiently or at all appreciate, interpret and apply correctly or at all the four (4) identified mandatory elements/principles of law that must co-exist and be proved as basis for founding a cause of action for malicious prosecution thus reaching a judgement that was erroneous, contrary to the law and contradicted the magistrate’s specific finding that the prosecution was on reasonable and probable cause.

(iii) The learned trial magistrate erred in law and fact in failing to properly, sufficiently, correctly or at all to interpret, analyse, consider and apply the law and judicial precedents/authorities produced to the court by the appellant as to what constitutes a valid cause of action on malicious prosecution and thereby prejudiced the Plaintiff by reaching a wrong judgement that was contrary to her own findings that the prosecution was based on reasonable and probable cause.

(iv) The learned trial magistrate erred in law by making a finding on malice as basis for the judgement when no malice was proved and her finding thereof was grossly erroneous and do not amount to malice as by law required and failed to appreciate that notwithstanding that finding, absence of want of reasonable and probable cause wholly negated a cause of action on malicious prosecution.

(v) The learned trial magistrate judgement against the Appellant is contrary to the law, the Plaintiff’s pleadings and is against the weight of the evidence.

(vi) The learned trial magistrate erred in law and fact in:-

a. Dismissing the case against the 2nd Defendant and failing to find and hold that if any judgement was due to the Plaintiff then it’s the 2nd Defendant wholly liable therefore having acted independently of the appellant through its agents (ie) the police officers who received and investigated the report from the Plaintiff and who without any directions from the appellant “set the law into motion” against the Plaintiff and independent of the appellant made the decision to prosecute the Plaintiff on the basis of its own investigations upon actual injuries proved under a P3 form it had issued.

b. In failing to award liability exclusively to the 2nd Defendant instead of the appellant or alternatively failing to find both 1st and 2nd defendants jointly liable under the 50% apportioned liability with the Plaintiff.

(vii) The learner trial magistrate’s findings and judgement against the appellant went against the weight of the evidence and the pleadings and is vague as to who is the correct 1st Defendant liable under the judgement vis a vis the parties named in the amended Plaint.

16. The Appellant urged the court to set aside the trial court judgement and consequential decree or in the alternative substitute with an order dismissing the suit against the Appellant and enter judgement against the 2nd Respondent at the same ratio 50:50 with the 1st Respondent. The Appellant also sought costs of the appeal and trial court.

17. On behalf of the Appellant, it was submitted that the prosecution was instituted with reasonable and probable cause and the same was not actuated by malice. It was submitted that the criminal court recognized that there were some altercation between the complainant and the accused person and the complainant sustained some injuries. According to the Appellant, by making a report to the police, the Appellant was within his rights to be protected by the law. It was submitted that there was evidence to make the Appellant report to the police. According to the Appellant, it cannot therefore be said that the Appellant was acting out of malice. The Appellant only reported to the police hence no ill will, spite or malice against the 1st Respondent.

18. In opposing the appeal, it was submitted on behalf of the 1st Respondent that the Plaintiff must prove that the prosecution at issue was initiated by the Defendant. It was submitted that the 1st Respondent was right to file a malicious prosecution case since he was acquitted in the criminal proceedings. It was submitted that there was no reasonable and probable cause shown for him to be prosecuted hence the criminal proceedings were not properly instituted. According to the 1st Respondent, the complaint against him was actuated by malice.

19. As regards the award of damages, it is submitted that the 1st Respondent was entitled to damages for malicious prosecution and the 1st Respondent urged the court to uphold the award as the same is uncontested.

20. In conclusion, it is submitted that the reputation of the 1st Respondent was injured due to the arrest hence he deserves the award of special and general damages. According to the 1st Respondent, he suffered indignity humiliation and/or injury to his feelings causing mental anguish and pain. It was submitted that it caused the 1st Respondent inconvenience and inability to provide for his family as a bread winner since he lost his job after being charged in court. The 1st Respondent therefore urged the court to dismiss the appeal.

Determination

21. I have considered the issues raised in this appeal. This being a first appellate court, it was held in Selle vs. Associated Motor Boat Co. [1968] EA 123that:

“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

22. Therefore, this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.

23. On the power to interfere with factual findings of the trial court, it was therefore held by the then East African Court of Appeal in Ramjibhai vs. Rattan Singh S/O Nagina Singh [1953] 1 EACA 71 that:

“This Court will not disturb a finding of a trial Judge merely because of an irregularity in the format of the judgement if it thinks that the evidence on the record supports the decision.”

24. However, in Peters vs. Sunday Post Limited [1958] EA 424, it was held that:

“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstances that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgement of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.”

25. It was therefore held by the Court of Appeal in Ephantus Mwangi and Another vs. Duncan Mwangi Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 that:

“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

26. In this case since the claim arose from the tort of malicious prosecution, the following are the issues that fall for determination in this suit:

1. Whether the criminal proceedings were instituted by the Appellant.

2. Whether the said prosecution was actuated by malice.

3. Whether there was reasonable cause and/or justification to make the complaint to the police.

4. Whether the criminal proceedings terminated in the plaintiff’s favour.

5. Whether the defendant is liable to compensate the plaintiffs and if so what should be the award of damages.

6. Who should bear the costs of the suit?

27. The law guiding the tort of malicious prosecution is well settled in this country. In Mbowa vs. East Mengo District Administration [1972] EA 352, the East 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. In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action. The damage that is claimed is in respect of reputation but other damages might be claimed, for example, damage to property...The damage to the plaintiff results at the stage in the criminal proceedings when the plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage results at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintiff could not possibly succeed without proving that the criminal proceedings terminated in his favour, for proving any or all of the first three essentials of malicious prosecution without the fourth which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the offence charged...The law in an action for malicious prosecution has been clearly defined and in so far as the ordinary criminal prosecution is concerned the action does not lie until the plaintiff has been acquitted of the charge. In this case the respondent could have brought his action for malicious prosecution until the prosecution ended in his favour. He could not have maintained his action whilst the prosecution was pending nor could he have maintained an action after he had been convicted. His right to bring the action only accrued when he secured his acquittal of the charge on appeal, and he then had the right to bring this action for damages...Time must begin to run as from the date when the plaintiff could first successfully maintain an action. The cause of action is not complete until such a time, and in this case this was only after he was acquitted on appeal.”

28. In Egbema vs. West Nile Administration [1972] EA 60, the same Court held:

“False imprisonment and malicious prosecution are separate causes of action; a plaintiff may succeed on one and fail on the other. If he established one cause of action, then he is entitled to an award of damages on that issue...For the purposes proof that the criminal proceedings have been determined in the appellant’s favour it is enough that the criminal proceedings have been terminated without being brought to a formal end. The fact that no fresh prosecution has been brought, although five years have elapsed since the appellant was discharged, must be considered equivalent to an acquittal, so as to entitle an appellant to bring a suit for malicious prosecution...There was no finding that the prosecution instituted by Uganda Police was malicious, or brought without reasonable or probable cause. The Uganda Police, unlike Administration Police, are not servants or agents of the respondent...The decision whether or not to prosecute was made by the Uganda Police, who are not servants of the respondents after investigation. There is no evidence of malice on the part of the respondent. The appellant was an obvious suspect as he was responsible for the security of the office from which the cash box disappeared. It cannot be said that there was no reasonable and probable cause for the respondent instigating a prosecution against the appellant. The actual decision to do so was taken by the Uganda Police. As the Judge has made no finding as to whether the instigation of the prosecution was due to malice on the part of the respondent, this Court cannot make its own finding. The circumstances of this case reasonably pointed to the appellant as a suspect and there was not sufficient evidence that in handing the appellant over to the Uganda Police for his case to be investigated and, if necessary, prosecuted, the respondent was actuated by malice”.

29. In Gitau vs. Attorney General [1990] KLR 13, Trainor, J had this to say:

“To succeed on a claim for malicious prosecution the plaintiff must first establish that the defendant or his agent set the law in motion against him on a criminal charge. Setting the law in motion” in this context has not the meaning frequently attributed to it of having a police officer take action, such as effecting arrest. It means being actively instrumental in causing a person with some judicial authority to take action that involves the plaintiff in a criminal charge against another before a magistrate. Secondly he who sets the law in motion must have done so without reasonable and probable cause…The responsibility for setting the law in motion rests entirely on the Officer-in-Charge of the police station. If the said officer believed what the witnesses told him then he was justified in acting as he did, and the court is not satisfied that the plaintiff has established that he did not believe them or alternatively, that he proceeded recklessly and indifferently as to whether there were genuine grounds for prosecuting the plaintiff or not. The Court does not consider that the plaintiff has established animus malus,improper and indirect motives, against the witness.”

30. In James Karuga Kiiru –vs- Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000, the court held:

“To prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is. And the burden of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted.”

31. Rudd, J in Kagane vs. Attorney General (1969) EA 643,set the test for reasonable and probable cause. Citing Hicks vs. Faulkner [1878] 8 QBD 167 at 171, Herniman vs. Smith [1938] AC 305 and Glinski vs. McIver [1962] AC 726 the learned judge stated thus:

“Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed...Excluding cases where the basis for the prosecution is alleged to be wholly fabricated by the prosecutor, in which the sole issue is whether the case for the prosecution was fabricated or not, the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of objective test. That is to say, to constitute reasonable and probable cause the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of facts discovered by the prosecutor or information which has come to him or both, 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. If and insofar as that material is based on information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution...If it is shown to the satisfaction of the judge that a reasonable prudent and cautious man would not have been satisfied that there was a proper case to put before the court, then absence of reasonable and probable cause has been established. If on the other hand the judge considers that prima facie there was enough to justify a belief in an ordinary reasonable prudent and cautious man that the accused was probably guilty then although this would amount to what I call primary reasonable and probable cause the judge may have to consider the further question as to whether the prosecutor himself did not believe in the probable guilt of the accused, and this is obviously a matter which is to be judges by a subjective test. This subjective test should only be applied where there is some evidence that the prosecutor himself did not honestly believe in the truth of the prosecution...Inasmuch as this subjective test only comes into operation when there were circumstances in the knowledge of the prosecutor capable of amounting to reasonable and probable cause, the subjective test does not arise where the reason alleged as showing absence of reasonable and probable cause is merely the flimsiness of the prosecution case or the inherent unreliability of the information on which the case was based, because this is a matter for the judge alone when applying the objective test of the reasonable prudent and cautious man. Consequently the subjective test should only be applied where there is some evidence directly tending to show that the prosecutor did not believe in the truth of his case. Such evidence could be afforded by words or letters or conduct on the part of the prosecutor which tended to show that he did not believe in his case, as for example a failure or reluctance to bring it to trial, a statement that he did not believe in it and, I think possibly, an unexplained failure to call an essential witness who provided a basic part of the information upon which the prosecution was based.”

32. As to what constitutes reasonable and probable cause, the law is clearly restated in Simba vs. Wambari [1987] KLR 601as follows:

“The plaintiff must prove that the setting of the law in motion by the inspector was without reasonable and probable cause…if the inspector believed what the witnesses told him then he was justified in acting as he did and I am satisfied the plaintiff has not established that he did not believe them or alternatively that he proceeded recklessly and indifferently as to whether there were genuine grounds of prosecuting the plaintiff or not”

33. The foregoing, in my considered view set out the law and the conditions to be satisfied in order for a plaintiff to succeed in the tort of malicious prosecution.

34. There was no doubt that the criminal proceedings terminated in the plaintiff’s favour since the 1st Respondent was acquitted upon being found that he had no case to answer.

35. On the issue whether the criminal proceedings were instituted by the 1st Respondent, the Appellant’s case was that they simply reported the fact of the assault to the police who carried out their investigations independently and charged the 1st Respondent and that the police were not their agents. In her judgement the learned trial magistrate did not make a specific finding that the prosecution was undertaken by the Appellant which was a necessary ingredient of the tort. I have myself subjected the evidence to scrutiny and I am unable to find any allegation or evidence that the Appellant’s undertook any other role in the matter save for reporting the assault.

36. With respect to the issue whether there was reasonable cause and/or justification to make the complaint to the police, the Learned Trial Magistrate found that there was in fact a reasonable cause to make the said complaint. Lack of reasonable cause is one of the essential ingredient to the finding of a tort for malicious prosecution and without it the said tort cannot be sustained.

37. The Learned Trial Magistrate however found that notwithstanding the finding that there was reasonable cause, the Appellant’s complaint was actuated by malice. If I understand the decision well, the Learned Trial Magistrate was in effect saying that though the Appellant had a reason to lodge the complaint, there were other motives for doing so.

38. The law is clear that the mere fact that a person has been acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor. As was held in James Karuga Kiiru vs. Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000, to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is, the burden of proving that the prosecutor did not act honestly or reasonably being on the person prosecuted. I therefore associate myself with the position adopted by Mativo, J in Stephen Gachau Githaiga & Another vs. Attorney General [2015] eKLR,that;

“…the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of whether the defendant is a private or public actor. Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fuelled by malice. The malice requirement is the key to striking the balance that the tort was designed to maintain: between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect.”

39. The finding of malice was based on the fact that there were exaggerations in the Appellant’s evidence. However, in light of the express finding by the learned trial magistrate that the Appellant had reasonable cause for lodging the complaint, it was necessary for the trial court to consider the dominant motive for bringing the criminal proceedings. It must always be remembered that the motive of institution of the criminal proceedings is only relevant where the predominant purpose is to further some other ulterior purpose but as long as the complainant has reasonable grounds for lodging the complaint, the tort of malicious prosecution would not succeed, even if the complainant had other reasons for complaining if those other reasons were not the predominant purpose. In other words, where the grounds for suing for malicious prosecution relied upon are some collateral motives which on their own do not overshadow the reasonable grounds, the tort for malicious prosecution would not succeed where there exist other genuine or reasonable grounds for lodging the complaint. See Republic vs. Chief Magistrate’s Court at Mombasa Ex Parte Ganijee & Another [2002] 2 KLR 703.

40. In this case the suit ought to have failed on the grounds that the 1st Respondent failed to prove that the prosecution was undertaken or instigated by the Appellant and that the Appellant had reasonable grounds for lodging the complaint.

41. In the premises, this appeal succeeds, the judgement of the learned trial magistrate to the extent that he found the appellant liable to the 1st Respondent for malicious prosecution is hereby set aside and is substituted by an order dismissing the case against the Appellant with costs but with no order as to costs of this appeal. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 9TH DAY OF FEBRUARY, 2022

G V ODUNGA

JUDGE

Delivered in the presence of:

Ms Mbulukyo for Ms Kavita for the Respondent

Miss Kamene for the Respondent

CA Susan