[2022] KEHC 3268 (KLR)

Nkulet v Attorney General & another (Civil Appeal 39 of 2018) [2022] KEHC 3268 (KLR) (7 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3268 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 39 of 2018

JM Ngugi, J

July 7, 2022

Between

Jackton Kibaki Nkulet

Appellant

and

Attorney General

1st Respondent

Musiara Limited t/a Governor’s Baloon Safaris

2nd Respondent

(Being an Appeal from the Judgment/Decree of Hon. G. H. Oduor-Chief Magistrate delivered on 21/03/2018 in Nakuru CMCC No. 847 of 2016)

Judgment

1. The Appellant was charged with the offence of stealing by servant contrary to Section 281 of the Penal Code in Kilgoris Chief Magistrate Criminal Case No. 483 of 2009. The allegations against the Appellant were that on 30/06/2009, he, together with other persons had stolen assorted items valued at Kshs. 337, 700 from his employer, Governors Tented Baloon Camp (hereinafter ‘the 2nd Respondent’). The Appellant was also charged with an alternative charge of handling stolen goods contrary to Section 322(1) of the Penal Code.

2. In a judgment delivered on 02/03/2010 by R. A. Ongayo -Principal Magistrate, the Court acquitted the Appellant of all charges, terming the evidence adduced by the Prosecution as “short of proof of the offences preferred against the Accused person”.

3. This prompted the Appellant to institute malicious prosecution proceedings against the Honourable Attorney General and the 2nd Respondent, who was the Complainant is the concluded criminal trial. The proceedings were instituted in CMCC No. 847 of 2016 by way of a Plaint dated 13/02/2013, wherein the Appellant sought general damages for wrongful detention, malicious prosecution, and mental anguish as well as costs and interest.

4. The Appellant’s case against the 2nd Respondent was that it maliciously and without reasonable cause laid false information before the police against him leading to his arrest. His testimony before the Trial Court was that he did his returns on 30/06/20029 to his employer’s accountant and went home on 2/07/2009 after the 2nd Respondent’s chief pilot Steve Rowland allowed him 5 days off duty and he was to return to work on 08/07/2009. While at home the Appellant said he was called by Steve who told him not to return to work as there was an issue.

5. He testified that on 02/08/2009 at about 6:00pm, two police officers searched his house but did not find anything and proceeded to arrest him with allegations of stealing from his employer. He was taken to Kilgoris Police Station where he saw a poster promising a bounty of Kshs. 20,000 to anyone who divulged information about him. According to him, he was then kept in the cells at Kilgoris Police Station until Monday, when he was charged but, in the end, the Court acquitted him for lack of evidence. It was also the Appellant’s case that he was dismissed from employment in the course of the criminal trial and that due to the charges, he was viewed with suspicion and could not get a job in the tourism sector. On cross examination, the Appellant maintained that no items got lost from the store while he was an employee.

6. Police Constable Wepukhulu David testified on behalf of the 1st Respondent. He told the Court that the Appellant had been arrested by Inspector Madam Diana Senior Sgt, (sic) P.C Kemboi and PC Kipseren and that thorough investigations had been done to warrant charging the Appellant. On cross examination, he told the Court that a Statement had not been taken from the Appellant upon his arrest. It was also his testimony that some of the stolen items had been found with the Appellant but recovered at 2nd Respondent’s premises, where he said the Appellant was in charge.

7. The 2nd Respondent called Peter Mwangi Kihara, who told the Court that although he was not present when the alleged theft occurred, he had access to the 2nd Respondent’s documents. The gist of his testimony was that there was variance between the physical accounts done on 11/07/2009 and the paper returns. According to him, the Appellant was absent between 30/06/2009 and 11/07/2009 yet he alleged to have taken a 5-day leave.

8. After hearing both sides and their submissions, the Learned Magistrate concluded that the Appellant had not proved his case and dismissed the suit with costs. The final part of the Judgment reads:The Prosecution herein was instituted by the 1st Defendant, and it was terminated in the Plaintiff’s favour. However, I am unable to say that it was instituted without reasonable and probable cause based on my earlier analysis. It is noteworthy that even in acquitting the Accused person the learned trial magistrate in the criminal proceedings had found a prima facie case had been established against the Plaintiff.The Plaintiff has also not proved that he was wrongfully detained. He did not bring out the particulars of wrongful detention in his evidence save for saying that he was arrested and kept in police cells until Monday when he was arraigned in Court. The Particulars of wrongful detention did not come out in the Plaint. Neither did the Plaintiff make any elucidating submissions on the same.In conclusion I find that the Plaintiff has not proved his case as required by law and I dismiss the suit with costs.

9. The Appellant, aggrieved by the Judgment and Decree filed the instant appeal vide his Memorandum of Appeal dated 17/04/2018 in which he listed the following nine grounds:1. That the learned Magistrate erred in law and fact in finding that the Plaintiff/Appellant had not proved his case as required.2. That the learned Magistrate erred in law and fact in finding that the defendants were not 100% liable.3. That the learned Magistrate was in error of law and fact in finding that the Plaintiff s/Appellant’s prosecution was instituted with reasonable and probable cause.4. That the learned Magistrate erred in law and fact in finding that the Plaintiff/Appellant did not prove that he was wrongfully detained.5. That the learned Magistrate erred in law and fact in particularly failing to rely on the proceedings of Criminal case number 483 of 2009 in determining the suit herein.6. That the learned Magistrate was in error of law and fact in failing to take into account certain facts on circumstances material to the Plaintiff's case.7. That the learned Magistrate misdirected himself on matters of law and fact in failing to assess damages with resultant injustice.8. That the learned Magistrate erred In law and fact in disregarding the Plaintiff/Appellant’s submissions.9. That the learned Magistrate's dismissal of the Plaintiff's suit has led to a resultant miscarriage of justice.

10. The Appeal was argued by way of written submissions. The Appellant’s submissions are dated 07/02/2022. The Appellant submits that the Trial Court’s finding cannot disentitle him from damages for the claim of malicious prosecution, wrongful detention, and mental anguish. He relies on the case of Robert Okeri Ombeka v Central Bank of Kenya [2015] eKLR and the ingredients of the tort of malicious prosecution laid out in Crispine Otieno Caleb v Attorney General [2014] eKLR.

11. The Appellant maintains that the prosecution against him was actuated by malice as there was no reasonable or probable cause to prosecute him. He relies on the cases of Nzoia Sugar Company Limited v Fungutuli [1988] eKLR and James Karuga Kiiru v Joseph Mwamburi& 3 othersNairobi CA No. 171 of 2000 where the common thread was that malice must be proved against the Prosecutor for a claim of malicious prosecution to be sustained. The Appellant further relies on the meaning of a reasonable cause given in Daniel Njuguna Muchiri v Barclays Bank of Kenya Ltd & another [2016] eKLR and maintains that that he was on leave when the listed items were stolen, a fact he says was known to the 2nd Respondent. According to the Appellant, the Court in dismissing the criminal case noted that there was no loss of items at the place where the Appellant person worked and that no theft on the part of the Appellant was established.

12. The Appellant contends that the failure to testify by the 2nd Respondent’s chief pilot was further proof of malice. He argues that the 1st Respondent failed to conduct proper investigations and produce evidence against him. He relies on the case of National Bank of Kenya v Alfred OwinoBalla Civil Appeal No. 93 of 2014 [2017] eKLR, for the proposition that malice can be inferred from hurried and flippant investigations.

13. The Appellant further relies on Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & another[2005] eKLR and Jackson MuthuiMaluki& another v Attorney General Civil Appeal No. 61 of 2017 [2020] eKLR. He contends that he suffered damages because of the wrongful confinement and malicious prosecution and urges that the Judgment of the Lower Court be set aside.

14. The 1st Respondent’s submissions are dated 25/02/2022. The 1st Respondent relies on the case of James Karuga Kiiru v Joseph Mwamburi & 2 others [2001] eKLR in support of his argument that the mere fact that a person has been acquitted of a criminal charge does not connote malice on the part of the prosecutor.

15. The 1st Respondent maintains that there was probable cause to arrest and charge the Appellant and that it tendered evidence to show how the decision to arrest and charge him was arrived at. The 1st Respondent insists that the Appellant became a suspect following thorough investigations. The 1st Respondent relies on the case of Egbema v. West Nile District Administration (1972) E.A. and prays that the Appeal be dismissed.

16. The 2nd Respondent’s submissions are dated 21/04/2022. The 2nd Respondent submits that the Appellant failed to prove its case to the required standards for a cause of action of malicious prosecution. It submits that it made a complaint upon realising that its property was missing as required under Section 89(1) of the Criminal Procedure Code.

17. The 2nd Respondent contends that the Appellant in his testimony in the criminal case admitted that the 2nd Respondent’s Chief Pilot called officers to carry out investigations. It contends further that the Trial Court had noted that the allegation of bad blood between the Appellant and the 2nd Respondent’s Chief Pilot was never raised during the criminal trial.

18. The Respondent submits that the criminal trial court determined that a prima facie case had been established and put the Appellant on his defence. It dismisses the Appellant’s assertion that the Trial Court did not rely on the criminal proceedings, or that the Trial Court disregarded the Appellant’s submissions.

19. The 2nd Respondent thus relies on the cases of Wambua v Mbuthi & 2 others(Civil Appeal 231 of 2016) [2022] KECA 84 (KLR) and John Nganga Kinuu & 2 others v Peter Rubiro Ndongi & 4 others [2020] eKLR and prays that the appeal be dismissed.

20. From the foregoing, the issue for determination is whether the Trial Court erred in its finding that the Appellant’s case did not meet the requirements for wrongful detention and malicious prosecution.

21. This being the first appeal, the role of this Court is as set out in Selle &another vs Associated Motor Boat Co. Ltd. &others(1968) EA 123. That is, to reconsider the evidence, evaluate it and draw its own conclusions keeping in mind that it has neither seen nor heard the witnesses.

22. Both limbs of the Appellant’s case before the Lower Court and this Court arose from his arrest over allegations of theft by the 2nd Respondent. The Trial Court did not extensively deal with the issue of wrongful detention, observing that the Appellant had neither pleaded particulars of wrongful detention nor adduced evidence to that effect. The much the Appellant pleaded about his detention is at Paragraph 6 of his Plaint where he stated that he had been arrested on 02/08/2009 and arraigned in Court on the next day, where a bond of Kshs. 100,000 was imposed on him.

23. While arrest, detention and prosecution may consist of one transaction, I am of the view that detention on its own, may give rise to a distinct cause of action where the person so arrested and detained is not charged. In this case, the Appellant does not deny that he was arrested upon a report being made to the police. The police in the normal course of their work arrested the Appellant and presented him to Court. This cannot be said to be wrongful detention as it was done in the normal course of commencing criminal proceedings. The Appellant did not allege or prove that he was detained for a longer period than is constitutionally permitted or in conditions that are unlawful or inhumane.

24. On the second limb, all the parties agree as to what constitutes the ingredients of malicious prosecution. Their point of difference is whether the Appellant satisfied these ingredients. From the numerous authorities cited by both parties and these ingredients are:(i)The defendant instituted the prosecution against the plaintiff.(ii)The prosecution ended in plaintiff’s favour.(iii)The prosecution was instituted without reasonable and probable cause.(iv)The prosecution was actuated by malice.

25. These ingredients have been reiterated by the Court of Appeal in Barclays Bank of Kenya Limited v Julius Kiema Kenga & another [2019] eKLR and National Oil Corporation v John Mwangi Kaguenyu & 2 others [2019] eKLR.

26. The Appellant easily satisfies the first two ingredients. However, it is the last two ingredients that form the core and substance of a claim for malicious prosecution. The Court in James Willy Mwanzia v Attorney General [2020] eKLR expounded on the ingredient of reasonable or probable cause as follows:In the case of Kagane & others v Republic (supra) which has been followed by various courts, the principles that apply to malicious prosecution were well set out. They include whether there was reasonable and probable cause for the prosecution, and this is to be judged on an objective basis. The available material basis for prosecution must be believed by the prosecutor. Once the objective test is satisfied there is a subjective test whether the prosecutor believed in such probable cause. For malicious prosecution to be found the plaintiff must prove that the prosecution acted maliciously in instituting the criminal proceedings.

27. The available material basis in this case was that the Appellant had been in charge of the store at until 02/02/2009, after which, the Appellant himself says he was off duty. At the time of starting his leave, the Appellant said he handed over returns to the accountant. The 2nd Respondent’s case was that it noticed discrepancies between the written returns and the physical stock after the Appellant had left for leave, prompting it to report a loss. This was in by all reasonable standards, probable cause. The 2nd Respondent had plausible basis to believe that the Appellant had committed the offence; and the Prosecutor reasonable basis to prefer charges.

28. The fourth and final ingredient was explained by Nyakundi J. inJames Kahindi Simba v Director of Public Prosecution & 2 others[2020] eKLR as follows:To prove malice on the part of the prosecution, the plaintiff must provide evidence that exhibits a malicious intent/an improper and wrong motive which has an intention to employ the legal process for some other purpose rather than its appropriate purpose. The purpose of the prosecution should be personal and spite rather than for the public interest or benefit. This may also exhibits abuse of Court process.

29. Can the prosecution of the Appellant in this case be said to have been carried out for a devious purpose? Can the Respondents be said to have been using the criminal procedure in an improper manner? I do not think so. At the time of his arrest and prosecution, there was a genuine belief in the mind of the prosecutor that theft had occurred, and that the Appellant was involved in the theft. The Appellant did not place any material before the Court to demonstrate that his prosecution was ill-intended. There are simply no tell-tale signs of malice in the actions of the Respondents in this case. They each proceeded on reasonable belief that the Appellant had committed the offence and that they were likely to obtain a guilty verdict.

30. The importance of this final ingredient was highlighted by Mativo J. in Stephen Gachau Githaiga & another v Attorney General[2015] eKLR as follows:The malice requirement is the key to striking the balance that the tort was designed to maintain: between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect.

31. The conclusion from the above is that the Appellant did not satisfy the two most important ingredients for the tort of malicious prosecution. The Learned Magistrate was, therefore, correct to dismiss his claim. The appeal is therefore unmerited, and it is hereby dismissed.

32. In the circumstances of this case, as a nod to the fact that the Appellant’s belief that the Respondents’ actions were actuated by malice while mistaken is understandable from a human perspective, the Court finds it prudent that each party should bear its own cost of the appeal. I do hope that the Appellant can finally put this episode of his life behind him and focus on the future. If so, may this gesture of absolving him from paying the costs of this ill-fated appeal serve as a beacon to him to move on.

33. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 7TH DAY OF JULY 2022. .............................JOEL NGUGIJUDGE