[2022] KEHC 12133 (KLR)

Mulama v Kizito (Civil Appeal 37 of 2019) [2022] KEHC 12133 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12133 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 37 of 2019

WM Musyoka, J

July 8, 2022

Between

Joyce Mulama

Appellant

and

Vincent Shijiko Kizito

Respondent

(Being an appeal from the judgment of Hon. E. Malesi, Senior Resident Magistrate, delivered on 20th February 2019, in Kakamega SPMCCC No. 488 of 2015)

Judgment

1. The suit before the trial court was by the respondent against the appellant and another, for compensation, for malicious prosecution, allegedly arising from a report that the appellant had made to the police, which caused his arrest and prosecution in Kakamega CMCCRC No. 1443 of 2013. The appellant resisted the suit by defence, in which she denied liability. A trial was conducted, and the appellant was found liable for malicious prosecution, and condemned to pay Kshs. 300, 000. 0 general damages, and Kshs. 58, 806. 00 being the cost of the trees which the respondent was alleged to have had stolen.

2. The appellant was aggrieved, hence the appeal. She avers that the evidence she tendered at the trial rebutted that by the respondent and his sought ought to have been dismissed; the respondent did not tender any evidence on malicious prosecution at the trial and, therefore, there was no basis for the award of damages; there was no proof to support the award of Kshs. 58, 806. 00 for the trees; the respondent had admitted to cutting down trees belonging to the estate of the deceased husband of the appellant without permission; the evidence was not considered nor analyzed; burden of proof was shifted to the appellant; the appellant’s case was not considered; the arrest, confinement, prosecution and acquittal of the respondent was outside the purview of the appellant; and the finding of the trial court were against the evidence.

3. Directions were taken on 3rd December 2019, for canvassing of the appeal by way of written submissions.

4. In her written submissions, dated 9th March 2020, the appellant refers to the written submissions that she had filed at the trial court. She submits that the mere collapse of the prosecution case in Kakamega CMCCRC No. 1443 of 2013 did not mean that the complaint she made to the police was not proper or malicious. She submits that the police bungled the case, and that could not be blamed on her, neither could that be evidence that she had malice in filing her complaint. On the award of Kshs. 58, 806. 00, she submits that the documents put in evidence to support the claim made no reference whatsoever to the tree. The respondent had alleged to have had bought the tree from, yet there was no evidence of the sale. It is further submitted that there was no valuation of the tree. It is further submitted that no permit was produced as evidence that the respondent had been authorized to harvest the tree, no proof on whose land the tree stood on. It is argued that it was wrong for the trial court to conclude that the tree belonged to the respondent. In her written submissions filed at the trial court, 17th December 2018, she submitted that the respondent did not prove spite or ill will, and cited the decisions in Nzoia Sugar Company Limited vs. Fungututi [1988] KLR 399 (Platt, Apaloo JJA & Masime Ag JA) and Kenya Power & Lighting Ltd vs. Florence Musau Nthenya & another[2017] eKLR (Cherere J) in support of her contention. On probable or reasonable cause, she cites Standard Chartered Bank Kenya Ltd vs. Intercom Services Ltd & 4 others [2004] eKLR (Gicheru CJ, Githinji & Onyango-Otieno JJA), to assert that where a complainant reports a crime, and the police initiate a prosecution upon independent investigations, then the person making the report would not be liable for the prosecution, unless the report was false and malicious. On the claims for Kshs. 58, 806. 00 and Kshs. 50, 000. 00, it is submitted that no proof had been provided to support those claims.

5. I have not seen written submissions by the respondent.

6. The respondent, as the plaintiff before the trial court, is recorded as having testified on 6th December 2016. He adopted hi witness statement, and told the court that he had bought trees from a co-wife of the appellant, known as Violet, for Kshs. 58, 000. Thereafter the appellant and the local Assistant Chief came and arrested him. He was then charged in Kakamega CMCCRC No. 1443 of 2013. He said he incurred Kshs. 20, 000. 00 to defend the criminal case. He said that his reputation suffered on being charged. He said he did not know the details of the land from which he cut the tree, and that he had not obtained authorization to cut down the tree. He said he had no evidence that he paid Kshs. 58, 000. 00 for the tree, neither did he have evidence for payment of Kshs. 20, 000. 00 to his Advocate. He stated that he could not recall when Violet was married, but it was after the appellant, and she found the trees having already been planted. He asserted that the trees did not belong to the appellant, for the land had been subdivided, and the trees fell on the side of Violet. He said that the husband of both Violet and the appellant was dead. He said he did not buy the trees from Fabian. He was to call Violet Nanjala Mulama as his witness, but he closed his case after he failed to secure her attendance.

7. The witness statement by the respondent is a one-page document, which I reproduce here below verbatim.1. …2. Thaton 18. 7.2013 I bought 4 big Ficus tree species from one Violet Mulama at a cost of Kshs. 58, 086. 00. When I cut them and ready to carry, I was arrested by the police from Kakamega Police Station and was charged with theft due to malicious report made by the 1st defendant.3. ThatI was tried in the criminal case where I was acquitted of the criminal charges and I spent Kshs. 50, 000/= for the defence in terms of legal fee.4. Thatthe charges were malicious and during the trial any repute was injured as I was portrayed as a thief.5. ThatI [ray for judgment against the Defendants jointly and severally as pleaded for in the Plaint hence I pray that the plaint herein be read together with my statement. That is all.”

8. The appellant, as the 1st defendant testified on 28th August 2018. She also adopted her statement. She blamed the Office of the Director of Public Prosecutions for the collapse of the criminal case in Kakamega CMCCRC No. 1443 of 2013, by failing to avail witnesses in court. She asserted that the trees belonged to her. She said that she had a witness, Yeswa who she took to the police for his statement to be recorded. She said she had also done succession to the estate of her late husband. She stated that she did not know Violet Mulama, nor that the house of that Violet had been destroyed. She said that the respondent had said that the trees was sold to him by Fabian. She said the value of the trees was assessed by a forester at Kshs. 58, 000. 00. She asserted that the report she made to the police was true. She conceded that she made the report to the police, and the respondant was arrested pursuant to the report.

9. The appellant called one witness, Pasilius Bulindwa Yeswa, a village elder. He asked that his witness statement be adopted. He testified that he saw the respondent cut and split the trees on 8th June 2013. He said that the husband of the appellant had died, and he was not aware that he had had another wife. He stated that he did not know Violet Mulama. He said that he was the one who advised the appellant to report. He did not know whether she reported, but he was aware that the respondent was on bond over a case for cutting down trees. He said that the respondent had told him that he had bought the trees from a Fabian Likono.

10. The case before the trial court was founded on the tort of malicious prosecution. Case law, as stated in Egbema vs. West Nile District Administration [1972] EA 60 (Sir William Duffus P, Law Ag. VP & Lutta JA), Kagane and others vs. Attorney-General and another [1969] EA 643 (Rudd J), Murunga vs. Republic [1976-80] 1 KLR 1251 (Cotran J), Katerregga vs. Attorney General [1973) EA 287 (Mead J), among others, is to the effect that the ingredients for the tort of malicious prosecution, and which any claimant for damages or compensation for that tort must prove, are: the prosecution was initiated by the defendant or defendants, it terminated in favour of the plaintiff, it was initiated without reasonable and probable cause and it was instituted with malice.

11. From the facts that were presented before the trial court, it is not contested that there was prosecution, in Kakamega CMCCRC No. 1443 of 2013, that was initiated by the appellant herein, who made a report to the local administrators, who advised her to report to the police, who took up the matter, had the respondent was arrested, taken to court and prosecuted. It is also not contested that the prosecution terminated in favour of the respondent. At the end of the criminal proceedings, the respondent was acquitted. The contestation is on the last two elements of malicious prosecution, that is as to whether the prosecution was instituted without reasonable and probable cause, and whether it was actuated by malice.

12. In Kagane and others vs. Attorney-General and another [1969] EA 643 (Rudd J) and Murunga vs. Republic [1976-80] 1 KLR 1251 (Cotran J) what constitutes reasonable and probable cause was defined. It was said that it is about the guilt of the accused person being based on reasonable grounds, and that there would be absence of reasonable and probable cause where a reasonable and cautious person would not have been satisfied that there was a proper case to be put before the criminal court. The person alleging malicious prosecution must place evidence or facts before the civil court to demonstrate that the case that the defendants had placed before the criminal court did not have any reasonable or probable cause, and that it was on that account that the prosecution failed. An acquittal by itself is not adequate proof of lack of a reasonable and probable cause. The plaintiff must go beyond the acquittal, and present material designed to explain why the prosecution terminated with his acquittal. The mere fact that the prosecution failed, without more, will not do.

13. The foundation for the tort of malicious prosecution is malice. There ought to be evidence to demonstrate that the prosecution was not about pursuit of justice, but was designed to achieve some wrongful or improper intent or motive. The standard meaning of malice is spite, invective, ill-will, wrongful motive, wickedness, among others. It refers to an intent to commit a wrongful act, or to act with reckless disregard of the law or the legal rights of another. Malicious prosecution is the institution of proceedings against a person for an improper purpose, or from wrongful and improper motives. See Black’s Law Dictionary, Tenth Edition, Thomas Reuters, 2009, 1101, and 1102; Nzoia Sugar Company Limited vs. Fungututi [1988] KLR 399 (Platt, Apaloo JJA & Masime Ag JA) and Standard Chartered Bank Kenya Ltd vs. Intercom Services Ltd & 4 others[2004] eKLR (Gicheru CJ, Githinji & Onyango-Otieno JJA).

14. In both the plaint, the witness statement and the oral testimony in court, the respondent made no effort to demonstrate that the criminal prosecution was malicious, in terms of it being driven by spite or ill-will or some other wrongful or improper motive, or that it was designed to serve some improper or wrongful purpose., and that the criminal prosecution did not have any probable or reasonable cause. He merely presented evidence of a criminal prosecution that terminated in his favour, and alleged that the report by the appellant was false and malicious, but he did not demonstrate why the report was false and malicious. He did not lead any evidence of the circumstances of the case which could have exhibited malice in the action taken by the appellant. He needed to do more than just prove that he had been arrested, prosecuted and acquitted. The burden of proof of malice and of lack of probable and reasonable cause, in cases of this nature, lies with the plaintiff, and shifts to the defendants only after the plaintiff has presented evidence of malice and of lack of probable or reasonable cause, for the defendants to explain themselves. From the facts of this case, the appellant did not discharge that burden, and did not establish any case against the appellant to warrant any orders being in his favour. The trial court came to the wrong conclusion, for the respondent failed to establish his case to the required standard.

15. I will explain. The respondent’s case appears to be that the land, on which the trees stood, belonged to a certain Violet, an alleged co-widow of the appellant, and that it was that Violet who had sold the trees to him. What is critical is that the respondent did not lead evidence to demonstrate that he was legally justified to cut the trees in question, having bought them from the owner of the land. The civil matter was adjourned several times, to allow him opportunity to call the person who had allegedly sold him the trees, that is Violet, but she never turned up, forcing him to close his case. The key to his establishing a claim for malicious prosecution, lay with him demonstrating that he was justified to cut the trees, given that the land, on which he cut the trees, was also claimed by the appellant. He asserted that the person entitled to that land was Violet, he did not provide any proof of the alleged ownership, and never called the said Violet to testify to that fact. The burden was on him to prove that fact. The burden would have shifted to the appellant, to prove otherwise, had it been proved that it was Violet who was entitled to the trees, hence the justification by the respondent to a right to cut them. He led no evidence to justify his right to cut the trees, for he had no claim to the land. The only thing tying him to the trees, was the allegation that the owner, Violet, had sold them to him, but he never called her to testify to that. If Violet had demonstrated that the land was in fact hers, or that she had a legal right to sell the trees on the land to the respondent, then there would have been basis to conclude that the criminal prosecution was without probable cause, and was malicious, in the circumstances.

16. Secondly, the respondent did not lay material before the court of the criminal case that the prosecution intended to mount in Kakamega CMCCRC No. 1443 of 2013, to demonstrate that it was weak, in terms of showing probable or reasonable cause. The criminal prosecution was terminated prematurely, after only one witness, the appellant herein, had testified, after the prosecution failed to call the other witnesses. The trial had not ran its full course, and it cannot, therefore, be concluded, from what was recorded by the trial court from the testimony of the appellant, that the case was weak, for all the facts had not been presented by all the witnesses the prosecution had lined up. That being the case, it was incumbent upon the respondent to table before the civil court other evidence to demonstrate that the case, intended to be presented by the prosecution in the criminal prosecution, was weak, or the facts from that material demonstrated an ulterior or improper motive behind the case. That he did not do. He relied solely on the failure of the prosecution to bring all its witnesses, to assert that the criminal prosecution was improbable and malicious.

17. There is a contest on the award of Kshs. 58, 806. 00. This was a claim for special damage, being the price of the trees. It was specifically pleaded. The question is, was it specifically proved? I do not think that it was specially proved. The respondent told the court that he did not have a document to evidence the payment. He should have, in view of that, called the person that he claims he bought the trees from, and, presumably, the one he paid, to acknowledge that indeed he was paid for the trees. He did not call that person.

18. Consequently, I find that the appeal has merit. The trial court ought to have dismissed the case for malicious prosecution. I hereby allow the appeal, in the terms proposed in the memorandum of appeal, dated 18th March 2019. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8TH DAY OF JULY 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Nandwa, instructed by Nandwa & Company, Advocates for the appellant.Mr. Ondieki, instructed by Gichaba Ondieki & Company, Advocates for the respondent.