[2022] KEHC 12945 (KLR)

Ndung’u v Attorney General (Civil Case 350 of 2015) [2022] KEHC 12945 (KLR) (Civ) (16 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12945 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 350 of 2015

JN Kamau, J

September 16, 2022

Between

Robert Ndung’u

Plaintiff

and

Attorney General

Defendant

Judgment

Introduction 1. In his plaint dated October 7, 2015, the plaintiff sought for a judgment against the defendant herein for:-a.Special damages of Kshs 3,448,000/= as prayed in paragraph 10 aboveb.General damages for false arrest and malicious prosecutionc.Interest on (a) and (b) above at court ratesd.Costs of this suit

2. The defendant entered appearance and filed a statement of defence dated January 27, 2016.

3. The plaintiff’s reply to the defendant’s statement of defence was dated July 29, 2016 and filed on August 10, 2016. Pursuant to this court’s directions of May 28, 2019, the plaintiff filed a bundle of documents dated June 27, 2019 on July 1, 2019. He also filed an amended witness statement that was cross-referenced to the said bundle of documents dated August 15, 2019 on August 16, 2019.

4. Following the said directions, the witness statement of No 215865 senior superintendent Dominic Kisavi (hereinafter referred to as “DW 1”) who testified on behalf of the defendant herein dated July 28, 2019 was filed on July 1, 2019. However, as the same had not conformed to the court’s directions on cross-referencing of the said witness statement to the bundle of documents, DW 1 filed a second witness statement dated October 25, 2019 on October 31, 2019.

5. The plaintiff’s written submissions were dated August 5, 2020 and were filed on September 15, 2020 while those of the defendant were dated September 28, 2020.

6. The judgment herein is based on the said written submissions which parties relied upon in their entirety.

The Plaintiff’s Case 7. The plaintiff was employed as an accountant at Unga limited Eldoret branch on December 1, 2002 for three (3) months which was to end on February 28, 2003. His employment was terminated on March 31, 2003. He was arrested at the employer’s Nairobi premises on April 7, 2003 on accusations that he was involved in theft of Kshs 1,500,000/= belonging to his employer. He was charged with nine (9) counts of stealing contrary to section 275 of the Penal Code cap 63 (Laws of Kenya) and stealing by servant contrary to section 281 of the Penal Code.

8. He was arraigned in court on April 8, 2003 in Kibera Magistrate’s Court criminal No 883 of 2003 and remanded from April 7, 2003 to April 11, 2003 when he was released on bond. He was acquitted by the trial court on December 2, 2010 under section 215 of the Criminal Procedure Code

9. His case was that the false arrest and improper investigations caused him to suffer mental anguish, pain and loss of reputation and self- esteem in the eyes of right thinking members of the public, family, friends, colleagues, loss of employment causing him to suffer inconvenience and inability to provide for his young family.

The Defendant’s Case 10. The defendant’s case was that the plaintiff was arrested and charged on reasonable suspicion after a legitimate complaint was lodged, that the police carried out investigations before effecting arrest, the acquittal did not automatically entitle the plaintiff compensation for malicious prosecution and that the suit was time barred.

Legal Analysis 11. Having analysed the respective parties’ evidence and submissions, it appeared to this court that that the issues that had been raised before it for determination were as follows:-a.Whether or not the instant suit was time barred;b.Whether or not the elements necessary to sustain a claim for malicious prosecution had been met; andc.If so, whether the plaintiff was entitled to the reliefs sought.

12. This court determined the various issues raised in the following distinct heads.

I. Competence of The Plaintiff’s Suit 13. The defendant invoked section 3(1) of the Public Authorities Limitations Act which provided that no proceedings founded on tort may be brought against the government or local authority after the end of twelve (12) months. He also cited section 4(2) of the Limitation of Actions Act and contended that the plaintiff’s suit was statutorily time barred having been filed on October 7, 2015 as the cause of action arose on the December 21, 2010 upon termination of his criminal case.

14. He added that the plaintiff failed to seek leave to file suit out of time and as such he could not seek redemption at this point in time. He relied on the case of Maersk Kenya Limited v Murabu Chaka Tsuma Civil Appeal No 209 of 2015 (eKLR citation not given) where the court held that the respondent slept on his rights and equity did not come to the aid of the indolent.

15. In addition, he referred this court to the case of Samson O Ngonga v Public Service Commission & 5others[2013] eKLR in which the court therein relied on the case of Iga v Makerere University(1972) EA where it was held that the Limitation Act (SIE) did not distinguish a suit or action itself but operated to bar a claim or remedy sought and that when a suit was time barred, the court could not grant the remedy or relief that had been sought.

16. He also placed reliance on the case ofHaron Onyancha v National Police Service Comission &another [2017]eKLR where the court held that the law of limitation of actions was intended to protect defendants against unreasonable delay in the bringing of suits against them.

17. He was emphatic that the suit herein was time barred as it was filed five (5) years after the cause of action arose and thus urged the court to dismiss the same. The plaintiff did not submit on this issue.

18. Notably, for the purposes of limitation, time begins to run from the date when a plaintiff could first successfully maintain an action. In the instant case, the plaintiff was acquitted of the charges that had been preferred against him in Kibera Magistrate’s Court Criminal No 883 of 2003 on December 1, 2010. The instant suit was filed on October 7, 2015. The period from the time of acquittal to the time the suit was instituted was over five (5) years.

19. Under normal circumstances, a suit founded on the tort of malicious prosecution must be brought before the end of three (3) years from the date of cause of action. Notably, section 4 of the Limitation of Actions Act cap 22 (Laws of Kenya) states as follows:-“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.

20. However, an action founded on tort can only be filed after leave to file suit out of time has been sought and obtained as provided in section 27 of the Limitations of Actions Act.

21. Having said so, the position is different when a party wishes to institute proceedings against the government or a local authorithy. Section 3(1) of the Public Authorities Limitation Act cap 39 (Laws of Kenya) provides that:-“No proceedings founded on tort shall be brought against the government or a local authority after the end of twelve months (emphasis court). from the date on which the cause of action accrued.”

22. Bearing in mind that the proceedings against the defendant herein were not against an ordinary defendant envisaged under the three (3) period of limitation period under the Limitations of Actions Act, the plaintiff herein was required to bring the action against him before the end of twelve (12) months, which was November 30, 2011.

23. For all purposes and intent, the plaintiff’s suit against the defendant herein was thus statute barred. Although this court could have downed its tools, I nonetheless found it prudent to determine the case on its merits in the event it were to be found on appeal, to have erred on the question of limitation of the plaintiff’s suit herein.

II: Malicious Prosecution 24. The plaintiff submitted that the police did not have reasonable and/or probable cause to institute criminal proceedings against him because the evidence showed that he was on probation, he did not have the password and he had no authority to print cheques. He asserted that the criminal charges that were preferred against him were actuated by malice, bad faith, recklessness and negligence of the veracity of the allegations that were levelled against him.

25. He placed reliance on the case of Daniel Waweru Njoroge & 17others v Attorney General[2015] eKLR where the court held that false imprisonment may be defined as an act of the defendant which causes the unlawful confinement of a plaintiff and it is an intentional tort.

26. He further argued that the law on this tort was well settled in the case of Sammy Kiprotich Tangus v Attorney General [2015]eKLR where the court herein referred to the case of Muringa v Attorney General[1979]KLR 138 in which it was held that for a plaintiff to prove a claim for malicious prosecution, he had to show that the prosecution was instituted by the defendant or by someone for whose acts the defendant was responsible that the prosecution was instituted without reasonable and probable cause, that the prosecution was actuated by malice and that the prosecution ended in favour of the plaintiff. To argue the same point, the defendant relied on the case of Kagane &others v The Attoney General(1969) EA 643 where the court therein made the same observations.

27. The plaintiff added that what constituted a probable cause was defined in the case of Simba v Wambati (1987) KLR 601 which was quoted with approval in the case of George Ngige Njoroge v Attorney General [2018] eKLR where the court held that the plaintiff must prove that the setting of the law against him was without reasonable and probable cause.

28. On his part, the defendant submitted that the plaintiff’s arrest was fully based on the complaint and information made at the police station on February 8, 2001 by the staff members of the Unga Limited Company, Eldoret to the effect that he had forged signatures for payment to the detriment of the company.

29. It was his contention that the police therefore acted in line with their duties as set out under section 24 of the National Police Service Act by receiving the complaint concerning the commission or likelihood of the commission of an offence recognised by the law, apprehend the suspected offender based on the recorded complaint and reasonable suspicion and detain the suspect for assisting in further investigations.

30. The principles that govern a claim founded on malicious prosecution were laid down in the case ofMurunga v Attorney General(supra), Kagane & others v The Attorney General (supra).

31. There was no doubt that the prosecution of the plaintiff in Kibera Magistrate’s Court Criminal No 883 of 2003 was instituted upon investigations by DW 1. It was also not in question that the criminal case was terminated in his favour. The question that arose was whether the actions of the defence were undertaken without reasonable or probable cause and that the action by the defendant was accentuated by malice.

32. No 218865 senior superintendent Dominic Kisavi (hereinafter referred to as (“DW 1”) testified that he was the investigating officer in the Plaintiff’s criminal case and he arrested him after the investigations and preferred charges against him. He pointed out that in his investigations, he found that the plaintiff had a connection with the alleged theft as he was an employee of Unga Limited and collected the cheques that were used to make fraudulent payments to fictitious farmers and/or suppliers on purporting them to have supplied either maize or wheat to Unga Limited.

33. The facts of the case show that a crime was committed at Unga Limited Eldoret branch where and when the plaintiff herein was employed as an accountant. Having conducted his investigations relating to issuance of cheques, in the mind of this court, DW 1 had reasonable cause to suspect that the plaintiff had committed the alleged offences and was thus well within his statutory duty to charge him. This court was thus not convinced that the defendant acted without reasonable or probable cause in prosecuting the plaintiff herein.

34. Whether the prosecution presented a water tight case at the trial court was a different matter altogether. It was the duty of the trial court to sift through the evidence that was adduced and make a determination if the prosecution had proved its case against the plaintiff herein. The fact that the plaintiff was acquitted for lack of evidence could not in itself sustain a claim for malicious prosecution.

35. Notably, he did not present any evidence before this court to demonstrate that the defendant applied extraneous considerations when he charged him. In fact, this court noted that in his testimony, the plaintiff stated that there was no grudge between him and the police and that he did not know the police before the arrest.

36. It is important to point out that all the ingredients for proof malicious prosecution must exist simultaneously. If any ingredient is absent and/or missing, then the claim for malicious prosecution has to fail. As the plaintiff herein did not demonstrate any iota of malice on the part of the defendant herein which was an integral part of ingredients forming the claim for malicious prosecution, his claim had to fail.

37. Having found that the plaintiff did not prove its case for malicious prosecution, this court did not find it necessary to analyse his and the defendant’s submissions in respect of the plaintiff’s claim for general damages and special damages for loss of income for seven (7) years and nine (9) months totalling to Kshs 3, 348, 000/= and legal fees of Kshs 100,000/=. It, however, noted all the respective submissions and the case law that each party relied upon.

38. Suffice it to state that the plaintiff did not adduce any evidence to support his claims for general and special damages contrary to trite law that damages must be pleaded and proved. In addition, he did not demonstrate to the court how he mitigated his losses. Notably, by the time he was being charged in court on April 8, 2003, his employment at Unga Limited had already been terminated after the three (3) months’ probation period.

39. Accordingly, in addition to the fact that the plaintiff’s claim was barred by limitation of time, this court found and held that he failed to prove his case on a balance of probabilities. He failed to prove all the ingredients of malicious prosecution and/or that he was entitled to general and special damages as he had sought. In the premises, his entire suit failed.

Disposition 40. For the forgoing reasons, the upshot of this court’s decision was that the plaintiff’s suit that was lodged on October 7, 2015 was not merited and the same be and is hereby dismissed. As the defendant is a government office, there will be no order as to costs as it would be punitive for a court to award costs in favour of the government against its citizen.

41. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER 2022J. KAMAUJUDGE