[2017] KEHC 1072 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 3 OF 2009

MOHAMMED ABBAS MOHAMMED SONJI...APPELLANT

VERSUS

JAMES ODHIAMBO OTIENO........................RESPONDENT

(An appeal from the Judgment of Hon. Yator, Resident Magistrate, delivered on 15th December, 2008 in Mombasa CMCC No. 769 of 2008)

JUDGMENT

1. The plaintiff (respondent) had in the court below filed a suit seeking general damages for unlawful arrest and false imprisonment, costs and interest. The Hon. Magistrate found that he had proved his case and awarded him Kshs. 40,000/= for false imprisonment and Kshs. 60,000/= for malicious prosecution. She also awarded him costs and interest.

2. The defendant (appellant) being dissatisfied with the judgment of the Hon. Magistrate filed a memorandum of appeal on 14th January, 2009 in which he raised the following grounds of appeal:-

(i) The Learned Trial Magistrate erred in law and in fact by failing to appreciate the principles applicable in proving the tort of malicious prosecution and thereby arrived at a wrong decision;

(ii) The Learned Trial Magistrate erred in law in fact (sic) in reaching a conclusion that the prosecution was instituted and continued by the appellant thereby arriving at unlawful and unjusticiable decision;

(iii) The Learned Trial Magistrate completely misapprehended the law in making a finding that the appellant was liable to pay damages where the Attorney General was not joined in the proceedings as a party;

(iv) The Learned Trial Magistrate erred in law and in fact in considering extraneous evidence adduced by the Respondent thereby arriving at a wrong decision;

(v) The Learned Trial Magistrate erred in giving a Judgment without giving reasons for the said Judgment; and

(vi) The Learned Trial Magistrate erred in law and in fact in awarding an excessive amount from (sic) general damages for false imprisonment and malicious prosecution without any basis thereby arriving at an unjust decision.

3. Mr. Nyongesa Advocate argued the appeal on behalf of Mr. Adhoch Advocate. He argued grounds No. 1, 2 and 3 of the appeal together by stating that the Hon. Magistrate did not consider the ingredients required by law to prove malicious prosecution. These are that the proceedings in the court below (criminal case) were instituted by the appellant without any reasonable cause, that he acted maliciously and the proceedings terminated in favour of the respondent.

4. Counsel submitted that the proceedings in the criminal case were decided in favour of the respondent, where the appellant was a complainant and a witness. In Counsel’s view, the Learned Magistrate did not take into account other grounds necessary to prove malicious prosecution and only stated that they had been proved, in the absence of evidence.

5. It was submitted that the appellant had a duty to complain to the police when an offence was committed against him and his role terminated at the point of instituting the complaint. He added that the Office of the Director of Public Prosecutions (ODPP) is mandated to prosecute any person who has committed a criminal offence and establish whether the said person is culpable. He argued that the appellant did not make the decision to charge the respondent. He stated that the Hon Magistrate noted that it was not the appellant’s fault not to pursue the prosecution at the Attorney General’s office.

6. On the issue of malice, Counsel submitted that the appellant reported what the respondent had done to him and that was not malicious. He contended that the award of Kshs. 100,000/=, plus costs and interest was an error on the part of the Magistrate, more so since the Attorney General was not enjoined in the suit.

7. Mr. Nyongesa in arguing the 4th ground of appeal stated that the Magistrate considered extraneous evidence and arrived at a wrong decision. He submitted that the respondent went to the appellant’s house and tampered with the electricity meter and asked for money to connect electricity to the house. He was given Kshs. 20,000/=. He was arrested after the appellant pointed him out to the police, as being the one who committed the offence.

8. On ground No. 5 of the appeal, it was submitted that the Hon. Magistrate did not give reasons for the Judgment and failed to take into account that the appellant gave the respondent Kshs. 20,000/= on demand. She did not believe the respondent demanded Kshs. 5,000/= to forbear from having the appellant charged with an offence.

9. Counsel invited the court to read the authorities attached to the appellant's written submissions to show the amount of damages that should have been awarded. He prayed for the appeal to be allowed and the Judgment of the lower court to be set aside.

10. Mr. Kinuthia, Learned Counsel for the respondent in opposing the appeal submitted that the Hon. Magistrate did set out the grounds for malicious prosecution in her Judgment. He relied on the case of James Karuga Kiiru vs Joseph Mwamburi and 3 Others [2001] eKLR where the court upheld the decision of the lower court and noted that to prosecute a person dishonesty or unreasonably does amount to malicious prosecution. He stated that the authorities relied upon by Counsel for the appellant were not applicable to the present circumstances. He added that the respondent was acquitted under the provisions of section 210 of the Criminal Procedure Code. He also relied on the case of Nzoia Sugar Company Ltd. vs Fungututi [1988] eKLR where the Court of Appeal held that there can be no malice in an artificial person.

11. It was submitted that the Hon. Magistrate in finding the fact that the respondent opted not to pursue the Hon. Attorney General (AG) did not obviate ill motive on the part of the appellant. In so holding, the Hon. Magistrate relied on the case of Samuel Ndirangu vs Patrick Wachira Nderitu, Civil Appeal No. 88 of 2001.

12. In responding to grounds 4-6 of the appeal, Mr. Kinuthia submitted that the Hon. Magistrate did not consider extraneous evidence and the appellant did not prove having given Kshs. 20,000/= to the respondent as alleged. Counsel concluded his arguments by stating that the respondent lost his job, his reputation was affected and even the damages awarded were on the lower side. He prayed for the appeal to be dismissed.

13. Mr. Nyongesa in responding to the above reiterated that the ingredients of malice were not proved and the complaint by the appellant was well founded. Counsel pointed out that the case of Simba vs Wambari [1987] KLR which was cited by Counsel for the respondent in his written submissions, was dismissed.

ANALYSIS AND DETERMINATION

The issue for determination is if the Hon. Magistrate misdirected herself in finding the appellant liable for malicious prosecution and false imprisonment.

14. This court is alive to the duty of the first appellate court as pronounced in the case of Sumaria and Another vs Allied Industrial Limited [2007] 2 KLR 1, as follows:-

“Being a first appeal, this court is obliged to reconsider the evidence, re-evaluate it and make its own conclusions. A Court of Appeal would not normally interfere with a finding of fact by the trial court unless:

(a) It was based on no evidence; or

(b) It was based on a misapprehension of the evidence; or

(c) The judge was shown demonstrably to have acted on the wrong principle in reaching the finding he did.”

15. In the court below, the respondent James Japheth Odhiambo Otieno testified as PW1. It was his evidence that he used to work for the Kenya Power and Lighting Company as a Revenue Supervisor. He recounted that in June, 2005 when on routine work for the company he visited a premises in Likoni and when inspecting some meters he found some missing and one had been diverted. He disconnected the meter and service to the appellant’s house went off. He was requested to go to the office for connection but he did not.

16. The respondent further stated that after 2 weeks while at Pan House Restaurant he was accosted by 5 Police Officers who told him that he had threatened the defendant. He was taken to CID offices and later to Makupa Police Station. He was held at Central Police Station from Thursday to Monday when he was taken to court after having been arrested on 22nd June, 2005. He was charged with threatening to extort Kshs. 30,000/= from the appellant. He was acquitted in the criminal case for lack of evidence. He produced the charge sheet of the said case as plf. exh. 1 and the proceedings thereof as plf. exh. 2. The respondent informed the lower court that his arrest was unlawful and malicious and he was taken to court after 3 days. He stated that the appellant initiated the allegation that he was soliciting for a bribe. The arrest affected him and made him lose his job at Kenya Power and Lighting Company. It assassinated his character, affected his family and source of income where he was earning Kshs. 42,000/=.

17. On being cross-examined, he stated that the appellant facilitated his arrest and he was taken to court on 27th June, 2005 after being arrested on 22nd June, 2005. He was acquitted on 14th June, 2006 and he filed a suit on 2nd April, 2008. He informed the Hon. Magistrate that he was acquitted because the Police did not have any other witnesses.

18. The appellant, Mohammed Abbas Mohammed, gave evidence as DW2 in the lower court civil case. He testified that he owns a shop at Jomo Kenyatta Street. He stated that the respondnet went his house asking for a bribe and disconnected power by tampering with the meter. He asked for a lot of money and took Kshs. 20,000/=. He was to take the rest later on. The appellant indicated that he had not tampered with the meter. He reported the matter to CID officers who did their work. He indicated that he testified in court (in the criminal case).

19. On cross-examination, the appellant informed the lower court that he had not tampered with the meter and did not have any bills to show that he was paying for power. He gave the respondent Kshs. 20,000/= who was later arrested in his presence, when he paid him Kshs. 5,000/=.

20. In order to determine if the case in the court below met the threshold set for malicious prosecution, this court makes reference to Kasana Produce Store vs Kato [1973] EA 190 at page 191, Duffus V. P., laid down the following ingredients for malicious prosecution:-

“(i) The plaintiff was prosecuted by the defendant in that the law was set in motion against him by the defendant on a criminal charge. The test is not whether the criminal proceedings have reached a stage which they may be described as a prosecution, but whether they have reached a stage at which damage to the plaintiff results;

(ii) That the prosecution was determined in the plaintiff’s favour;

(iii) That it was without reasonable or probable cause. On the evidence the defendant did not believe in the justice of his own case; and

(iv) It was malicious. The defendant had improper and indirect motives in bringing this false charge against the plaintiff.”

21. In the present case, the Judgment of the Hon. Magistrate states in part - “In this case the plaintiff was arrested at the instance of the defendant by lodging a complaint against him to the police who subsequently arrested him. In fact he was the one who pointed the plaintiff to the police. The police proceeded to prosecute the plaintiff even knowing that they lacked any evidence. They must have been actuated by malice even for failing to call the defendant who was the complainant to the case (sic) …….” (emphasis added).

22. On the issue of the appellant having not testified in the criminal case, the evidence of the appellant is very clear that he testified in court but did not know of the outcome of the case. The respondent produced proceedings of the Mombasa Chief Magistrate’s Criminal Case No. 2230 of 2005 as plf. exh. 2, which on page 22 show that the appellant testified as PW1 on 14th June, 2006. The Hon. Magistrate therefore misdirected herself by holding that the appellant did not testify in the criminal case.

23. The said proceedings show that the respondent was acquitted as the facts adduced in the said case did not support the charge and no further evidence could alter the position. The prosecution also had no witness present in court to call, yet they had been given the last adjournment.

24. Applying the ingredients of malicious prosecution set out in the case of Kasana Produce Store vs Kato (supra) to the present case, it is my finding that the appellant set in motion the prosecution of the respondent herein. The prosecution was determined in the respondent’s favour. It is however my finding that the prosecution was with reasonable cause and that the appellant believed in the justice of his own case as set out in his evidence in the criminal case. I also find that the prosecution of the respondent in the criminal case was not malicious as no evidence came out during the hearing of the civil case before the Hon. Magistrate to show that the appellant was actuated by malice or that he was propelled by improper and indirect motives in pursuing a false charge against the respondent.

25. The fact that the evidence adduced in the criminal case did not support the charge against the respondent was an error that came about in the drafting of the charge sheet which was an act within the preserve of Police Officers. This is discernible from the charge sheet that was produced as plf. exh. 1.

26. In Nairobi High Court Civil Appeal No. 595 of 2000, Socfinat Kenya Limited vs Peter Guchu Kuria, it was stated as follows:-

“that a suspect was acquitted of a criminal case is not sufficient ground for filing a civil suit to claim damages for malicious prosecution for false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”

27. Reasonable and probable cause was defined in the case of Hicks vs Fawkers [1878] QBD 161 at 171 as follows:-

“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.”

28. On the issue of false imprisonment, it is my finding that after reporting the matter to the police and the arrest of the respondent, the appellant had no hand in the duration of time the respondent was kept in police custody. The respondent did not sue the Attorney General who was then in charge of the prosecutions, through whom evidence would have been adduced to show the reasons behind the respondent being kept in custody for 3 days before being taken to court. The respondent at the hearing of the civil case before the court below did not show that the appellant exerted any influence on the police to keep him in custody for the said duration of time.

29. I have considered the submissions of both Counsel and the authorities they have relied upon to support their arguments. This court’s finding based on the evidence on record and the cases it has cited is that the respondent failed to prove his case on a balance of probabilities. I thereof set aside the decision of the lower court and allow this appeal.

30. The appellant and the respondent were complicit in trying to deny Kenya Power and Lighting Company its dues for supply of electricity to the appellant’s house. For the said reason, each party will bear its own costs of the suit in the court below and this appeal. It is so ordered.

DELIVERED, DATED and SIGNED at MOMBASA on this 2ndday of November, 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

No appearance for the appellant

Ms. Kisilu holding brief for Mr. Kinuthia for the respondent.

Mr. Oliver Musundi - Court Assistant