[2023] KEHC 26374 (KLR)

Nairobi Serena Hotel v Machuka & another (Civil Appeal 690 of 2017) [2023] KEHC 26374 (KLR) (Civ) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26374 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 690 of 2017

AN Ongeri, J

December 7, 2023

Between

Nairobi Serena Hotel

Appellant

and

Wycliff Makori Machuka

1st Respondent

The Hon Attorney General

2nd Respondent

(Being an appeal from the judgment and decree of Hon. D. W. Mburu (PM) in Milimani CMCC no. 1587 of 2012 delivered on 23/12/2016)

Judgment

1. The 1st respondent, Wycliffe Makori Machuka filed Milimani CMCC No. 1587 of 2012 against the appellant and the 2nd respondent seeking damages for unlawful arrest, illegal confinement and malicious prosecution and also costs of the suit.

2. The 1st respondent was an employee of the appellant when he was arrested on 23/6/2016 by the Banking Fraud Investigation Unit and arraigned in court and charged with the offence of preparation to commit a felony c/s 308 of the Penal Code vide Criminal Case No. 1179 of 2014.

3. The 1st respondent was acquitted of the offence on 30/3/2011 under Section 202 of the Criminal Procedure Code.

4. The trial court found the appellant and the 2nd respondent jointly and severally liable and assessed general damages at kshs.800,000 and special damages of kshs.101,700.

5. The appellant has appealed against the judgment and decree of the trial court on the following grounds;i.The learned magistrate misdirected himself on the applicable principles in law on malicious prosecution.ii.In making his findings, the learned magistrate failed to take into consideration, and in fact glosses over factual evidence that was not disputed by the plaintiff, which formed the core basis upon which a complaint was made by the plaintiff against the 1st defendant to invoke intervention by the police: That a card skimmer was found in possession of the plaintiff;

That the 1st defendant had been experiencing a series of credit cards frauds.iii.The learned magistrate misdirected himself in law and fact when he misconstrued the failure of witnesses to attend the criminal proceedings to mean that there was a malice on the part of the defendants, and that there was therefore, no reasonable and probable cause to justify prosecution of the plaintiff.iv.The learned magistrate further misdirected himself in interpreting failure for a witness to attend court to mean that therefore, all the necessary legal prerequisites necessary to prove malicious prosecution had been established by the plaintiff.v.The learned magistrate erred in law in assuming that a mere acquittal under Section 202 of the Criminal Procedure Code went to prove that there had been malicious prosecution of the 1st respondent.vi.The learned magistrate erred in law and in fact in failing to draw a distinction between the roles of the defendant in a malicious prosecution suit, and subsequently erred in finding liability against the defendants jointly and severally.vii.The learned magistrate erred in law and in fact in finding that the plaintiff had proved his case when in fact he had not, and on that basis awarding damages and costs in favour of the plaintiff.

6. The parties filed written submissions as follows; the appellant submitted that the 1st respondent was acquitted under section 202 of the criminal procedure act. He was therefore acquitted on a technicality as a result of failure of attendance by the witnesses. The appellant argued that no evidence was adduced to demonstrate that it acted with malice and that it had a reasonable basis to involve the banking fraud investigation unit who later instituted charges against the 1st respondent. the appellant in support of its argument cited the case of Socfinaf Kenya Ltd v Peter Guchu Kuria Nairobi HCCA No 595 Of 2000 it was held 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 or false imprisonment. Evidence of spite, ill-will, lack of reasonable and probable cause must be established."

7. The appellant submitted that had been credit card fraud incidents reported at its hotel by several guests. The fact that the gadget was found in the 1st Respondent's possession was reasonable ground for the Appellant to report the same to the Banking Fraud Investigations Unit. The subsequent charges against the 1st Respondent were based on the reasonable suspicion that he was involved in the Crime or preparing to commit the same as set out in the charge sheet in the criminal case.

8. The appellant further argued that its responsibility ended with 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. It carried out its duty to invite the proper party to carry out the investigations and also fulfilled its duty of conducting internal investigations before inviting the banking fraud investigations unit to take over the investigations.

9. On the award of Kshs 800,000 as general damages the appellant argued that the same was exaggerated, exorbitant and without any factual basis. That the respondent did not prove his case of malicious prosecution and hence an award should not have been granted.

10. The respondent on the other hand submitted that the complainant in this case was the appellant through its hotel chief security Samuel Kahuga while the 2nd respondent instituted the proceedings. The complainant’s witnesses despite being served with summons to attend court failed to do so and rightfully the criminal court dismissed the matter.

11. The respondent submitted that there was evidence that there was absence of reasonable and probable caused to commence or continue the prosecution. That if the appellant had evidence to show that the 1st respondent had committed the alleged crime should have appeared in court to testify.

12. The 1st respondent submitted that the appellant should have further assisted the 2nd respondent in prosecuting the criminal case through availing witnesses and documents to support the charges but failed to do so. They said that the actions by the appellants therefore amounted to malice as there was no evidence to prosecute the case.

13. This being a first appeal the duty of the first appellant court is re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the findings of the trial court. In Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held in the following terms: -“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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, this 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 demeanor of a witness is inconsistent with the evidence in the case generally.”

14. The issues for determination in this case are as follows;i.Whether the appellant has reasonable and probable cause to arrest and charge the 1st respondent.ii.Whether the award of general damages of ksh.800,000 was exorbitant, exaggerated and without factual basis.iii.Whether the appeal should be allowed.

15. On the issue whether the appellant had reasonable and probable to have charged the 1st respondent, I find that the 1st respondent was found with a skimmer gadget suspected to be used in obtaining details from credit and debit cards fraudulently.

16. There is undisputed evidenced that the 1st respondent was acquitted under Section 202 which states as follows;Non-appearance of complainant at hearingIf, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit.

17. However, in the current case, I find that the Appellant had reasonable probable cause to have the 1st respondent charged.

18. The reason the 1st Respondent was acquitted on a technicality as a result of failure of attendance by the witnesses.

19. In the case of Socfinaf Kenya Ltd. Vs Peter Guchu Kuria & Another[2002]eKLR, the court held as follows;“when there is a case of suspected theft the first step is to report the matter to police who, in their own way find out how to carry out investigations. And it is upto the police to take further steps like taking a suspect to court if they have sufficient evidence against such suspect to warrant such action. This then is the action by police and the state should be involved or joined in such suit and that the complainant should not be blamed for making such report to police. What is of great significance in such a case is whether or not there is reasonable and or probable cause for the arrest and or prosecution of the culprit. And the onus of proving that there was no reasonable and probable cause for the arrest and prosecution of the suspect lies on him/her who queries such arrest or prosecution.As to the prosecution of the respondent, the complainant could not force police to do so when there was no evidence to take them to court. Police carry out investigations before taking suspects to court and there are various incidents when police have declined to prosecute a suspect when investigations have disclosed no offence to warrant thus. If the respondent’s case fell in the latter category then I am sure they would not have taken to court. That a suspect was acquitted of a criminal case is not sufficient ground for filing a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”

20. The 1st respondent was released on a technicality and I cannot be said that he was acquitted on merit.

21. The possibility that the 1st Respondent would have been convicted had the case been heard on merit cannot be ruled out.

22. I find that the 1st respondent did not prove on a balance of probabilities that the report made to the Police Station aboutcredit card fraud incidents reported at its hotel was false and malicious.

23. The fact that the gadget namely a card skimmer was found in the 1st Respondent's possession was suspicious and the Appellant had a reasonable and probable cause to have the 1st respondent investigated and charged in court.

24. I allow the appeal and set aside the judgment and decree of the trial court.

25. I substitute the judgment and decree of the trial court with an order dismissing the 1st respondent’s suit against the Appellant and the 2nd respondent.

26. The 1st respondent cannot be allowed to benefit from his own wrong doing.

27. Each party to bear its own costs of the original suit and of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF DECEMBER, 2023. ...........................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent