[2017] KEHC 2892 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO. 67 OF 2016

NEHEMIAH ODHIAMBO……………….............1ST APPELLANT

JOHN OTIENO OWUOR……………………....2ND APPELLANT

GEORGE O. WAMEYO………...........................3RD APPELLANT

VERSUS

MANJEET H. SEMBI.......................................1ST RESPONDENT

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

(Being an Appeal from the Judgment ofHon. B. Kasavuli (RM) inWinam SRMCC NO.147 OF 2010 delivered on 26th August 2016)

JUDGMENT

Background

(1)Nehemiah Odhiambo, John Otieno Owuor and George O. Wameyo (hereinafter referred to as appellants) were mechanics employed for Ndugu Transport Company Ltd and the 1st defendant was director of the said company. 1st defendant complained that a steering pump was missing from the garage appellants were working in and they were arrested and charged in Winam Criminal Case No. 98 of 2008with an offence of stealing. They were subsequently acquitted under section 210 CPC after witnesses failed to attend court.

(2)Appellants sued Manjeet H. Sembi and Hon. Attorney General (hereinafter referred to as respondents) in the lower court claiming damages for wrongful arrest, unlawful confinement and malicious prosecution.

The defendants/respondents denied the claim and urged the court to dismiss the appellants’/plaintiffs’ claim with costs.

In a judgment delivered on 26th August 2016,the learned trial Magistratefound that the appellants had not proved their claim and dismissed it with costs to the respondents.

The Appeal

(3) The Appellants being dissatisfied with the lower court’s decision preferred this appeal and filed the Memorandum of Appeal dated 13th September, 2016 which sets out 5 grounds of appeal to wit:-

a) The Learned trial Magistrate erred in law in dismissing the appellants’ suit in the face of overwhelming evidence proving that the charges brought against them in Winam Criminal Case No. 98 of 2008 were terminated under section 210 of the Criminal Procedure Code

b) The Learned trial Magistrate erred in finding that the ingredients for malicious prosecution of the appellants by the respondents were not met

c) The Learned trial Magistrate misdirected himself in delivering a judgment and not considering all the evidence on record, precedents provided by counsels on record and the closing arguments put forth by appellants’ counsel

d) The Learned trial Magistrate misdirected himself in delivering a judgment which does not comply with Order 21 rules 4 and 5 of the Civil Procedure Rules

e) The Learned trial Magistrate was biased against the appellants

SUBMISSIONS BY THE PARTIES

Appellant’s submissions

(4) In further exposition of the above grounds of appeal, learned Counsel for the appellant, invited this court to consider that the appellants proved their claim on the basis that the criminal case was terminated in their favor. To this end; the appellants relied on

It was further submitted for the appellant that failure by respondents to tender evidence leading to an acquittal of appellants under section 210 CPC confirmed that they did not have a reasonable and probable cause to lay a claim against them. To this end, appellants relied on Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 where the learned judge stated

“It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged”.

1st Respondent’s submissions

(5) It was submitted that the 1st respondent that there was probable cause for the 1st defendant to make a complaint to some police after steering pump that was in the custody of the appellants got lost. He relied on Mbowa vs. East Mengo District Administration [1972] EA 352 and Gitau v AG (1990) KLR 13

2nd Respondent’s submissions

(6) It was submitted for the 2nd respondent that the appellants had not proved the ingredients of a charge for malicious prosecution set in the case of John Ndeto Kyalo v Kenya Tea Development Authority & another [2005] eKLR and urged the court to dismiss the appeal.

a.Analysis and Determination

(7) This being a first appeal, this court is mandated to evaluate the evidence before the trial court while bearing in mind that it never saw or heard the witnesses and therefore make due allowance for that. The principles governing the consideration and evaluation and findings of an appeal court have well been established particularly in the case of Kiruga Vs Kiruga & Another [1988 KLR page 348 where the Court of Appeal held

“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

(8) I have perused the entire record of appeal and considered the submissions for both parties. The principle issue for determination in this appeal is whether the prosecution against the respondent was malicious. The principles that govern a claim founded on malicious prosecution have been laid down in a number of cases including the case of John Ndeto Kyalo v Kenya Tea Development Authority & another [2005] eKLR

(a) The Plaintiff must show that the prosecution was instituted by the Defendant, or by someone for whose acts he is responsible.

(b) The Plaintiff must show that the prosecution terminated in his favour.

(c) The Plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause.

(d) He must also show that the prosecution was actuated by malice

(9) In dealing with the appeal, I shall endeavor to address each of the prickles as hereunder.

a. Was the prosecution instituted by the Defendant, or by someone for whose acts he is responsible?

It is not disputed that the proceedings in Winam Criminal Case No. 98 of 2008 were instituted by the 1st respondent.

b. Did the prosecution terminated in his favour of the plaintiff?

The proceedings in Winam Criminal Case No. 98 of 2008 terminated in favor of the appellants and they were acquitted of the charge of stealing under section 210 of the Criminal Procedure Code Cap 75 Laws of Kenya on account of non-availability of witnesses.

c. Has the plaintiff demonstrated that the prosecution was instituted without reasonable and probable cause?

(10) In the case of Zablon Mwaluma Kadoriv National Cereals & Produce Board[2005] eKLR, Maraga J (as he then was) defined reasonable and probable cause and cited with approval, in Hicks v Fawkner (1878), 8 Q.B.D. 167 at P.171 where Hawkins, J said:

“Reasonable and probable cause is an honest belief in the guilty 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.”

(11) The forgoing definition was adopted in David Mungai Kinyanjui and 2 Others -VS- Attorney General(2012)eKLR where Odunga J held interalia:

“In other words the person preferring the charge or laying a complaint before the court should have an honest belief in the guilt of the person charged based upon reasonable grounds depending on the state of circumstances which if they are true would lead any prudent and cautious man placed in the position of the prosecutor to the conclusion that the person he is charging is probably guilty of the crime imputed. The question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of an objective test and 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 consists 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 prudent and cautious man to the extent of believing that the accused is probably guilty.”

(12) As I have stated herein above, the appellants were acquitted on account of non-availability of witnesses. The respondents did not tender any evidence to justify the failure to adduce evidence against the appellants during the trial. By their failure to call evidence before the criminal court, the respondents failed to prove that the appellants were charged based upon reasonable grounds which if they were true would lead any prudent and cautious man placed in the position of the prosecutor to the conclusion that they were probably guilty of the crime imputed. (See Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others (Supra).

Consequently; I find that there is evidence that the appellants were prosecution without reasonable and probable cause.

d) Was the prosecution actuated by malice

(13) On malice; Odunga J in David Mungai Kinyanjui and 2 Others -VS- Attorney General (Supra) stated as follows:

“In other words whether the defendant, in instituting criminal proceedings, was actuated with an improper and wrongful motive, that is, with intent to use the legal process in question for some other than its legally appointed and appropriate purpose.”

Having found that there was no probable cause to arrest and charged the appellants;

I have come to the conclusion that the proceedings were actuated by malice and not by a honest aspiration to do justice.

I therefore find that the appellants proved their case to the required standard and both are defendants are jointly and severally liable.

Quantum

(14) Having found the respondents liable, this court has an obligation to determine the quantum awardable to the appellants. The trial court had quantified the damages in the sum of Kshs. 500,000/- for each of the appellants. Although the respondents had a duty to guide the court by citing relevant cases, I notice from the record of the trial court that they did not make any submissions on quantum. The trial court had relied on Zablon Mwaluma Kadoriv National Cereals & Produce Board(Supra) cited by the appellants in which the plaintiff who had, like the appellants herein, been charged and acquitted of a charge of stealing by servant was awarded Kshs. 500,000/- general damages.

(15) On interference by an appeal court with a finding of fact by a trial court, the Court of Appeal in NzoiaSugar Company Limited Vs Capital Insurance Brokers Limited [2014] eKLR cited Makube Vs. Nyamiro [1983] KLR 403 with approval and stated:

“........a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”

(16) Similarly, in the case of Kirugav Kiruga & Another [1988] KLR 348, the Court accepted the principle laid down by the House of Lords in Watt v Thomas[1947] 1 All ER 582where Sir O’Connor said:-

“It is a strong thing for an appellate court to differ from the finding, on a question of fact of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”

(17) An analysis of the evidence on record does not demonstrate that the trial magistrate acted on wrong principles in reaching the findings that Kshs. 500,000/- would be reasonable damages to each of the appellants. I therefore see no reasonable cause to interfere with that finding.

(18) The upshot of the above analysis and evaluation is that the appeal is allowed to the extent that the order dismissing the appellants’ case is set aside and substituted with an award of Kshs. 500,000/ general damages for each of the appellants. Appellants shall have costs of the appeal and of proceedings in the lower court.

DATED AND DELIVERED THIS12thDAY OF October2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Clerk - Felix

Appellants - Ms. Kyamazima h/b for Ms. Opondo

1st Respondent - N/A

2nd respondent - N/A