[2017] KEHC 1566 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL CASE NO. 573 OF 2012

NICHOLAS MARENDE.......................................................................1ST PLAINTIFF

BENARD ERICK ASTIVA....................................................................2ND PLAINTIFF

VERSUS

CONSTABLE SUAN RONO............................................................... 1ST DEFENDANT

THE POLICE COMMISIONER........................................................... 2ND DEFENDANT

THE HON. ATTORNEY GENERAL..................................................... 3RD DEFENDANT

JUDGMENT

The Plaintiffs herein filed a plaint dated the 29th day of November, 2012 claiming general damages, punitive/aggravated or exemplary damages plus costs of the suit, against the defendants.

It is averred that on or about 4th day of March, 2011, the plaintiffs were arrested by police officers and remanded at Kilimani police station. The arrest followed a complaint by the mother to C A, a minor, aged 5 years that the plaintiffs had raped the minor on the 3rd day of March, 2011.

The Plaintiffs contend that on or about the 7th day of March, 2011 they were unlawfully and without any reasonable suspicion or justification arraigned in the Kibera Chief Magistrate’s court where they were formally and jointly charged with the offence of gang defilement contrary to Section 10 of the Sexual Offences Act No. 3 of 2006 in Criminal Case No. 860/2006.

The Plaintiffs aver that since they come from poor backgrounds, they could not afford to be released on either cash bail or bond as directed by the trial court and as such, they were remanded at the industrial area remand where they spent a total of five hundred and forty one days as a consequence of which they lost income accruing from their food vending business in Kibera Laini Saba.

The prosecution ended in an acquittal on the 29th August, 2012. They aver that the said prosecution was unlawful and malicious and they have set out the particulars of malice in paragraph 13(a) – (x) both inclusive. They have contended that as a consequence of the defendant’s acts of malicious prosecution, they have suffered great loss and damage, mental anguish as they have been portrayed as criminals and persons of bad morals.

The defendants filed a defence denying the plaintiff’s claim and a reply to defence was filed on the 15/3/2013.

When the matter came up for hearing on the 28th July, 2016, the 2nd plaintiff did not attend court though he had been duly served with a hearing notice.

The first plaintiff testified as PW1 but he did not call any witnesses. He adopted his witness statement dated the 29th November, 2012 and filed in court on the 3rd day of December, 2012. In his evidence he stated that on the 3rd day of March, 2011, he reported to work as usual at Kisumu Ndogo within Kibera where, together with the 2nd plaintiff, used to make food for their clients.

That he left work at 5 p.m. in the evening and at around midday the following day, a group of youths went to where he was doing business and told him that he was needed at [particulars withheld] primary school. He accompanied them to the said school where he was informed that together with the 2nd plaintiff, they had defiled a young girl whom he saw for the first time in school.

He was escorted to Kilimani police station where he was booked for the offence of defilement and on the 7th March, 2011 he was taken to the Chief Magistrate court at Kibera where he was charged with the offence of gang defilement. He stayed in remand for four hundred and forty six days during the hearing of the case but finally he was acquitted on the 2nd day of august, 2012, for lack of sufficient evidence. He stated that he blamed the investigating officer for charging him when there was no sufficient evidence.

The defendants did not call any witnesses. Parties filed written submissions which this court has duly considered. In my view, the following are the issues for determination.

(1)Whether the criminal proceedings were instituted by the defendants

(2)Whether the said prosecution was actuated by malice?

(3)Whether there was reasonable cause and/or justification to make a complaint to the police.

(4) Whether the criminal proceedings were terminated in favour of the first plaintiff.

(5)Who should pay the costs of the suit?

The legal principles that govern a claim founded on malicious prosecution were laid down by Contran J in the case of MURUNGA v ATTORNEY GENERAL (1970) KLR 138and the said principles are in tandem with the issues listed herein above and it would not be necessary to repeat them. The first and the 4th issues are not in dispute as the facts speaks for themselves.

The two main issues for determination therefore are; whether the prosecution was actuated by malice and whether there was a reasonable cause and/or justification.

The phrase reasonable and probable cause has been given judicial attention in various cases. In the case of HICKS vs FAWKERS (1878), 8 OBD, Hawkins J defined probable and reasonable cause as follows:-

“reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction based 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 imported.”

The foregoing definition was adopted by Rudd J in KAGANE vs ATTORNEY GENERAL & ANOR (1969) E.A 643in which the learned Judge reiterated that:-

“…….. 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 consisted of the facts discovered by the prosecution or information which has come to him or both, must be such as to be capable of satisfying an ordinary, reasonable, prudent and cautious man to the extent of believing that the accused is probably guilty.”

In assessing whether a prosecution was founded on reasonable and probable cause, courts are at all material times required to exercise, caution and restraint. This is based on the constitutional foundation of the office of the Director of public prosecution as an independent institution. The entry point into this inquiry is that there is a presumption that the prosecution office is established to advance the purpose of the constitution and the rule of law. It is therefore incumbent upon any person alleging that the prosecution was malicious to go beyond the evidence adduced against them and show that there was some further motive then is allowed in law.

In the case of socfinaf Kenya Limited Vs Peter Guchu Kiria (High court Civil Apeal No 595 of 2000)the learned Judge Aganyanya (as he then was) noted as follows;

“The fact 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.”

In determining what is reasonable and probable cause, Justice D. V Odunga in Chrispine Otieno caleb Vs The A.G while citing the case of Glinsia Vs Melererhad this to say;

“Reasonable and probable cause is an honest belief in the guilt of an accused person 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…. Excluding cases where the basis for the prosecution is alleged to be wholly Fabricated by the prosecutor in which the sole issue is whether the case for the prosecution was fabricated or not, the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of objective test. This is to say, to constitute a 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 consisted 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, reasonable, prudent and cautious man to the extent of believing that the accused is probably guilty. If and in so far as the material is based on information, the other information must be reasonably credible, such that an ordinary, reasonable, prudent and cautious man could honesty believe to be substantially true and to afford a reasonably strong basis for the prosecution…. it is shown to the judge that a reasonable, prudent and cautious man would not have been satisfied that there was a proper case to put before the court, the absence of reasonable and probable cause has been established.”

Though the defendants did not call any witnesses, they filed written submissions wherein it is contended that the plaintiff’s arrest was lawful as among the statutory functions required of the police under section 24 of the National Police Service Act are to provide assistance to the public when in need and to investigate crimes and arrest offenders. It is averred that in this case, the police arrested the plaintiff upon receiving a report from the the mother to the minor that the minor had been gang defiled by the plaintiffs. That the police proceeded to carry out thorough investigations into the allegations made and hence proceeded to charge the plaintiffs with the said offences.

The defendants further submitted that the prosecution was not done with malice and thus the claim must fail. They contended that the case fell apart due to non-attendance of some of the prosecution witnesses and not because the police lacked reasonable grounds to press the charges. It was argued that the plaintiff did not produce any evidence that the police acted in bad faith or otherwise had wrongful motive when they instituted the criminal proceedings against him.

On the part of the first plaintiff, it was argued that the mother to the complainant did not testify in court despite having made the complaint to the police. He further told the court that upon his acquittal, he found the mother to the complainant having taken over his kiosk as well as his business. He asked the court to infer malice on that account. Though the plaintiff testified as much in his evidence, it has not been shown that the defendants acted in cahoots with the mother to the complainant but one would have expected the defendants to unearthen such an allegation during their investigations. With the evidence on record, and in the absence of evidence of that knowledge on the part of the defendants, there is no sufficient evidence on the basis of which the court can infer malice on the part of the defendants on that particular account.

On whether there was a reasonable and probable cause, the court notes that the plaintiff herein had been charged with an offence under the sexual offences Act no. 4 of 2011. Under the said Act, some of the essential ingredients that the prosecution is required to prove are that of penetration and identification of the offender. The defendants ought to have had this in mind while carrying out their investigations once the complainant was lodged with them. On record, is the P3 form which was produced as P Exhibit .2 (1). The police surgeon who testified as a witness in the criminal case was categorical when he stated that, it was practically impossible for such grown up men (plaintiffs) to gang defile the complaint and leave her hymen intact. The doctor also confirmed that there was no penetration and that her external genitals were normal. She had no injuries to the vulva, vagina and perineum.

I have perused the proceedings in the criminal case No 860/2011 (RVs Nicholas Marende & Bernard Erick Astiva) and my attention is attracted by the evidence of P.C Susan Ndungi who was the investigating officer. On cross examination, she was referred to exhibit 4 which is the initial treatment note of the minor for Nairobi Women’s Hospital. In the said documents, it is remarked thus;

“The above named was seen at our facility on the 3/3/2011 with a history of sexual assault by three (3) boys who were hiding in the toilets at [particulars withheld] Primary School. The complainant complained of sexual assault by the 3 boys.

The investigating officer even went to the said school but the complainant did not point out to any school boy. When the same witness was shown the statement of the A O, she admitted having recorded the following in the said statement.

“I, together with the headmaster and the school administrator Mrs. J M proceeded to identify the boys David Bahati and Ogaga who are classmates with C A. They interrogated the boys who admitted they were playing with C A.

Further, in his evidence in the criminal trial, she stated that she was given the names of the two boys but she was not allowed to speak to them because the two plaintiffs herein had already been arrested. That the school did not allow her to speak to the boys. To me, it was rather unfortunate for a whole police officer who was charged with the duty to investigate the case, to tell the court that she was not allowed to speak to the 2 boys who, at the material time were suspects yet as a police officer she ought to have known that the identity of the suspect was very critical before she could make up her mind to charge anyone with the offence and its no wonder, the learned magistrate acquitted the plaintiffs for lack of sufficient, evidence.

In the case of Joseph C. Mumo Vs The A.G and Joseph N. Gitau, justice Nambuyewhile dismissing the defence argument that the police were justified in arresting, detaining and prosecuting the plaintiff, stated thus;

“Once the foundation of reasonable ground is destroyed, what is left is bare ground on which spite, ill- will and improper motive flourish, which spite, ill will and improper motive need not be express, it can be implied like in this case once the existence of either express or implied ill-will, spite and improper motive are established, these go to destroy the 2nd defendants Veil of protection of being duty bound to apprehend and bring to book would be law breakers. The removal of the aforesaid veil of protection ushers in a form, base for civil liability like in this case.”

From the aforegoing, I am inclined to hold that there was no reasonable cause and/or justification for the police to commence and continue with the prosecution of the plaintiffs and therefore I find them liable for malicious prosecution.

On the issue of damages, the plaintiff has sought general damages and punitive/aggregated or exemplary damages. I have considered the submissions by the plaintiff in this regard. The defendants, however, did not address the court on the issue of the quantum of damages. The plaintiff has urged the court to make an award of ksh. 10,000,000 and has cited the case of Christine Otieno Caleb Vs the A.G,where the plaintiff was awarded ksh. 2 million as damages for malicious prosecution after he was held in custody for 4 days. The plaintiff has further asked the court to award ksh. 2 million as punitive/aggravated/Exemplary damages. I find that the sum of ksh. 10 million prayed for by the plaintiff is so much on the higher side. Considering the circumstances of this case, a sum of ksh. 500,000/= is reasonable as compensation. I make no award under the head of punitive/aggravated/exemplary damages as no evidence was lead to support such award. The plaintiff is awarded the costs of the suit.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. 1st for the Plaintiff

…………………………. 2nd for the Plaintiff

…………………………. 1st for the Defendant

…………………………. 2nd for the Defendant

…………………………. 3rd for the Defendant