[2022] KEHC 10710 (KLR)

Njeru & another v Attorney General (Civil Appeal 66 & 67 of 2016 (Consolidated)) [2022] KEHC 10710 (KLR) (2 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10710 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal 66 & 67 of 2016 (Consolidated)

LM Njuguna, J

June 2, 2022

Between

Agapius Nyaga Njeru

1st Appellant

Leonard Munene Mambo

2nd Appellant

and

Attorney General

Respondent

((Being an appeal from the Judgment of Hon. Oigara R.O. in CMCC No. 109 of 2015 delivered on 16. 11. 2016))

Judgment

1. The appellants herein lodged the appeal before this court where they have challenged the judgment of the trial court. The appellants seek to have the said judgment set aside and they be awarded general damages of Kshs. 800,000/= each and special damages of Kshs. 80,000/= plus costs and interest.

2. The appellants’ case is pegged on a claim for malicious prosecution that on 08. 06. 2014, the agents of the respondent entered Mutungi bar which is owned by the 1st appellant and proceeded to arrest the 2nd appellant who was a bartender. That the 2nd appellant was arraigned in court and charged with the offence of selling unlicensed alcoholic drinks in a licensed premises contrary to section 34 (a) of the Alcoholic Drinks Control Act No. 4 of 2010 in Criminal Case No. 302 of 2014. In the end, the trial court reached a determination that the prosecution had failed to establish a prima facie case against the accused and so the accused was acquitted under section 210 of the CPC. That the appellants proceeded to file suit for malicious prosecution in CMCC 109 of 2015 which was dismissed for the reason that the appellants failed to prove their case.

3. At the hearing of the appeal, the court directed that the same be canvassed by way of written submissions which all parties complied with.

4. The appellants’ submitted that the appeal herein is as a result of having been dissatisfied with the judgment in Embu CMCC No. 109 of 2015. It was their case that the prosecution was actuated by malice given that the prosecution did not proof the case against the 2nd appellant. Reliance was placed on the case ofChrispine Otieno Caleb v Attorney General[2014] eKLR. It was submitted that the respondent caused the 1st appellant’s business to suffer financial loss given the fact that the agents of the respondent confiscated the 1st appellant’s Ndume Beer worth Kshs. 30,000/= and another stock worth Kshs. 200,000/=. That the 2nd appellant also incurred legal fee of Kshs.50,000/= to defend the criminal case. It was their case that the 1st appellant suffered loss of good business reputation among its customers as the business was branded to be selling ‘kumi kumi’ or counterfeit liquor drinks due to the frequent illegal confiscations by the respondent’s agents; that the 2nd appellant suffered in police custody for three days and further psychological pain during the subsistence of the criminal case which was founded on malice. In the end, the appellants sought judgment for special and general damages, interests and costs of the suit.

5. On the other hand, the respondent submitted that the appellants did not proof the tort of malicious prosecution. That the fact that the police arrested the 2nd appellant for selling unlicensed alcoholic drinks and then proceeded to prosecute him does not necessarily amount to malicious prosecution because he was acquitted. Reliance was placed inter aliaon the cases of James Karuga Kiiri v Joseph Mwamburi & 3others Nrb C.A No. 171 of 2000; James Kahindi Simba v Director of Public Prosecution & 2others[2020]. It was submitted that the police were only performing their statutory duties as provided for under the law.

6. Further, it was submitted that the 2nd appellant did not produce evidence in court to proof that the prosecution was actuated by malice. That the 1st appellant’s claim for the loss of good business reputation by claiming that his bar was branded as selling “kumi kumi’’ is unfounded since no evidence has been adduced to deserve the alleged claimed damages. That the appellants previously claimed that the respondent’s agents had confiscated 150 litres of Ndume beer worth Kshs. 30,000/= but after acquittal of the 2nd appellant, it was indicated that the stock was worth Kshs. 200,000/=. It was the respondent’s case that the appellants only produced a receipt for Kshs. 50,000/= for legal expenses while it is trite that special damages must be specifically pleaded and proved. In the end, it was prayed that this court dismisses the appeal herein with costs to the respondent as the same is frivolous.

7. I have considered the grounds of the appeal herein, and the rival submissions by the parties and I hereby form the view that the issues this court is called upon to determine are the following:i)Whether the claim for damages for malicious prosecution was proved on a balance of probabilities.ii)Whether the appellants are entitled to the damages sought.

8. This being a first appeal, the court is under duty to peruse the entire record and re-evaluate the evidence taking cognizance of the fact that it did not have the benefit of hearing the witnesses first hand. The court is further expected to make its own independent conclusions of the law and fact. [See Selle & another v Associated Motor Boat Company Limited & others[1968] EA 123].

9. The tort of malicious prosecution is established where a person causes the arrest and prosecution of another person without reasonable or probable cause. The threshold for establishing a claim for malicious prosecution was laid down in the case of George Masinde Murunga v Attorney General[1979] KLR 138 as follows: -i)The plaintiff must show that the prosecution was instituted by the defendant, or by someone for whose acts he is responsible.ii)The plaintiff must show that the prosecution terminated in his favour.iii)The plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause.iv)He must also show that the prosecution was actuated by malice.”

10. It is not in dispute that the complaint culminating in the prosecution of the 2nd appellant was instituted by the respondent. It is also not in dispute that the prosecution terminated in the 2nd appellant’s favour.

11. As to what constitutes reasonable and probable cause, the law is clearly restated in Simba v Wambari [1987] KLR 601 as follows:“The plaintiff must prove that the setting of the law in motion by the inspector was without reasonable and probable cause…if the inspector believed what the witnesses told him then he was justified in acting as he did and I am satisfied the plaintiff has not established that he did not believe them or alternatively that he proceeded recklessly and indifferently as to whether there were genuine grounds of prosecuting the plaintiff or not”

12. It is trite that the mere fact that a person has been acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor. In the case of James Karuga Kiiru v Joseph Mwamburi and 3 others, Nrb CA No 171 of 2000, it was held that to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably. The burden of proving that the prosecutor did not act honestly or reasonably is on the person prosecuted. [Also see Stephen Gachau Githaiga &another v Attorney General [2015] eKLR].

13. On whether there was malice in making the report that led to the accused person being charged, PW1 being in company of APC Fridah Kagendo and while on patrol on June 8, 2014 at 9. 00 a.m., stated that they received information that there was a person manufacturing beer without a license; that the same was happening at Mutungi bar and so they proceeded upto the said bar and found the 2nd appellant (Leonard Munene). That they searched the premises and found that the 1st appellant was manufacturing an alcoholic drink namely Ndume of about 150 litres without a license. The investigating officer during cross examination, stated that the 2nd appellant was arrested while selling illicit brew known as Ndume without a license. He proceeded to admit that Ndume is a traditional liquor recognized under the Alcoholic Drinks Act and that he neither investigated the case nor visited the scene.

14. It is outright that the agents of the respondent never found the 1st appellant manufacturing the said drink but found it in the store. Further, the investigating officer never investigated the case in order to help the court arrive at an informed determination.

15. The police are expected to be professional in the conduct of their investigations and they ought not to be driven by malice or other collateral considerations. The mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before they prefer charge(s) against a person suspected of having committed an offence.

16. The investigating officer stated that he never took statement from the appellants herein but instead proceeded to act on the report by PW1 and PW2 which eventually led to the prosecution of the 2nd appellant who was acquitted at the end of the trial; in my view, failure to carry out comprehensive investigations before charging the 2nd appellant and proceeding to charge him knowing well that there was no sufficient evidence to sustain the charge amounted to lack of reasonable and probable cause.

17. It is not required of any prosecutor that he must have tested every possible relevant fact before action can be taken against a suspect. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for prosecution. In the present case as already stated hereinabove, the circumstances from which the court can deduce that the arrest and arraignment of the 2nd appellant was probably justified have not been disclosed to the court by the respondent. I hold the view that lack of reasonable and probable cause was, in this case, evidence of malice.

18. On damages, it is trite that special damages have to be specifically pleaded and strictly proved. In the plaint, the appellants pleaded special damages of Kshs80,000/= and receipts were produced for the said amount being Kshs.50,000/= for legal fees and Kshs.30,000/= for 3 drums of 200 litres of Ndume beer.

19. As for the general damages, the appellants have urged the court to award them Kshs. 800,000/= each. I note that no evidence was led by the 1st appellant on financial loss, if any, due to the alleged halting of the normal working hours of his bar when the respondent’s servants confiscated his Ndume beer stock. The same case applies to his claim for loss of “good business” reputation after his bar was allegedly branded as selling dangerous “kumi kumi” or counterfeit liquor or killer alcoholic drinks. In the submissions, a sum of Kshs. 800,000/= has been claimed but there is no evidence or authorities to support the same. The court finds that the 1st appellant is not entitled to an award of general damages.

20. In regard to the 2nd appellant there is no doubt that he was arrested and prosecuted for selling unlicensed alcoholic drinks but he was acquitted under section 210 of the Criminal Procedure Code. This court has already found that the prosecution was actuated by malice as there was no probable and reasonable cause. In his submissions, he urged the court to award him Kshs.800,000/= but no authorities were cited to justify his claim. This court takes into account that the 2nd appellant was charged on 9. 06. 2014 and was acquitted on the September 5, 2014. The trial took only three months to finalize and during this time, he was out on bond. In the circumstances, I find that the 2nd appellant is just entitled to minimal damages which I hereby award of Kshs. 100,000/=.

21. The appellants are awarded the costs of the appeal.

22. It is so ordered.

Delivered, dated and signed at Embu this 2nd day of June, 2022. L. NJUGUNAJUDGE…………………………………………for the Appellant……………………………………for the Respondents