[2022] KEHC 15483 (KLR)

Odallo v Alaro (Civil Appeal 51 of 2017) [2022] KEHC 15483 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15483 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 51 of 2017

RE Aburili, J

November 15, 2022

Between

Mary Atieno Odallo

Appellant

and

Nelly Achieng Alaro

Respondent

(An appeal arising out of the judgement and decree of the Honourable D.A. Okundi in the Principal’s Magistrate’s Court at Maseno delivered on the 31st May 2017 in Maseno PMCC No. 66 of 2015)

Judgment

Introduction 1. The appellant Mary Atieno Odallo herein was the plaintiff in the lower court where she sued the respondent Nelly Achieng Alaro before the trial court vide a plaint dated February 26, 2015 claiming for damages for malicious falsehood as well as special damages occasioned by charges brought against her in Maseno Criminal Case No 625 of 2012 where she was charged with the offence of creating a disturbance in a manner likely to cause a breach of peace.

2. It was the appellant’s case before the trial court that the case against her was occasioned by a report made by the respondent to the police which report was based on false allegations motivated by ill will and malice.

3. In her defence, the respondent denied the appellant’s allegations and averred that her complaint against the plaintiff was based on actual occurrence and that the appellant’s acquittal on the charge against her was based on the fact that the incident in issue had not occurred in an open place so as to constitute a breach of peace as per the charge.

4. In her determination, the trial magistrate found that the appellant failed to prove malicious prosecution and thus dismissed her suit. Dissatisfied by the trial court’s finding, the appellant filed her memorandum of appeal dated July 23, 2017 raising 7 grounds of appeal namely:a.The learned trial magistrate grossly erred in both law and fact in dismissing the appellant’s suit.b.The learned trial magistrate erred in both law and fact in failing to appreciate that a claim for malicious falsehood is a tort that is actionable in law.c.The learned trial magistrate erred in both law and fact in arriving at a finding that it was mandatory for the Attorney General ought to have been joined in the proceedings.d.The learned trial magistrate grossly misdirected herself in considering irrelevant issues and making findings on nonexistence evidence.e.The ruling having fully determined the suit failed to contain the points for determination and the reasons for such determination in line with the mandatory provisions of order 21 rule 4 of the Civil Procedure Rules.f.The learned trial magistrate erred in both law and fact in failing to consider the appellant’s submissions while arriving at the decision.

5. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 6. It was submitted on her behalf that the trial magistrate erred by failing to appreciate that a claim for malicious falsehood was a tort actionable in law.

7. The appellant submitted that the respondent lodged a report to the police against her leading to her arrest, lock-up and charging in court and subsequently her prosecution that led to her acquittal.

8. The appellant further submitted that the evidence adduced by the respondent before the criminal court was at variance with that of the investigating officer and this imputed malice on the part of the respondent as her complaint was brought in bad faith and to settle a score.

9. It was further submitted that as a result of the charges brought against her by the respondent, her reputation was badly injured before the eyes of the public where she resides.

10. The appellant further submitted that the trial court erred by finding that it was mandatory for the Attorney General to be enjoined in the proceedings as failure to enjoin the Attorney General was not fatal to warrant dismissal.

11. The appellant further impugned the trial court’s judgement for failing to comply with order 21 Rule 4 of the Civil Procedure Rules that provides that a judgement shall contain a concise statement of the case, points for determination, the decision and reasons for the said decision.

12. The appellant further submitted that the trial magistrate failed to consider her submissions in arriving at her decision.

13. The respondent did not file submissions.

Analysis & Determination 14. I have considered the grounds of appeal, submissions by counsel for the appellant and the authorities relied on. This being a first appeal, parties are entitled to and expect a rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination.

15. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See in Gitobu Imanyara & 2 others v Attorney General[2016] eKLR, where the Court of Appeal stated that:“[A]n appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect”

16. Having considered the parties’ rival positions in the trial court and before this court, I find that the issues for consideration are as follows;a.Whether the appellant proved his claim for malicious falsehoodb.Whether the trial court erred by failing to comply with order 21 rule 4 of the Civil Procedure Rules 2010

17. On the first ground, it is the appellant’s case as set out in her plaint filed before the trial court that the respondent falsely reported her at Kombewa Police Station for abusing her which malicious report led to her arrest and prosecution even though she ended up being acquitted by the criminal court.

18. In the final paragraph of her plaint, the appellant is specific that she prays that judgement be entered in her favour against the respondent for among others, damages for malicious falsehood. Similarly, in her submissions dated October 20, 2016, the appellant submitted on damages for injurious falsehood.

19. On her part, the respondent denied the appellant’s claim and put her to strict proof and further averred that her complaint against the appellant was based on an actual occurrence and that the appellant’s acquittal on the charge against her was based on the fact that the incident in issue had not occurred in an open place so as to constitute a breach of peace as per the charge.

20. In her submissions, however, the respondent submitted on the tort of malicious prosecution.

21. In the case of Kings Wear Limited v Registered Trustees of the Sistes of Mercy [2019] eKLR the court addressed itself to the tort of malicious falsehood stating as follows:“In the book; “Unlocking Torts” by Chris Tuner 3rd Edition, the writer states that:“A cause of action in malicious falsehoods arises where false words are maliciously published in circumstances where they are calculated in the ordinary cause of things to produce and do produce, injury to a person in his trade, property or business, an action will lie for malicious or injurious falsehood.”The cause of action is closely related to that of defamation and in many respects the similarities between the two torts are striking. Indeed, it will commonly be the case that the same set of facts will give rise to the cause of action in both defamation and malicious falsehoods.At common law, in order to succeed in an action for malicious falsehood, the claimant must prove that:a)The defendant published false words of the claimant whether orally, or in writing, to third parties.b)That the publication was maliciousc)That damage was caused which was the natural and reasonable result of the publication.In the case of Radcliffe vs. Evans (1892) 2OB 254, the court of Appeal distinguished the tort of malicious falsehood from the very specific requirements of defamation and decided that the tort could result in liability in respect of any malicious statement that resulted in damage even where defamation could not be shown.”

22. In her judgement, the trial magistrate acknowledges in the first paragraph that the appellant’s claim is for damages for malicious falsehood but then proceeds to consider whether the appellant has met the conditions required to succeed in a claim for malicious prosecution.

23. The tort of malicious prosecution is committed in circumstances where a defendant causes the arrest and prosecution of the plaintiff or claimant without reasonable or probable cause.

24. It is indeed a well settled principle of law that parties are bound by their pleadings and that unless amended, the evidence adduced shall not deviate from the pleadings. This legal position was reaffirmed by the Court of Appeal in the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others Civil Appeal No 76 of 2014 [2014] eKLR thus:“In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other’s case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense.”

25. The court, on its part, is bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.

26. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice as was held in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal No. 219 of 2013 [2014] eKLR.

27. Accordingly, I find that the trial magistrate erred in law in considering the tort of malicious prosecution that was not pleaded by any of the parties, as the issue for determination and proceeding to find that the appellant had not satisfied the ingredients to establish liability on the respondent’s part.

28. To this extent, I find that the whole of the trial magistrate’s judgement dated 31/5/2017 must be quashed and set aside. I proceed and quash and set aside that judgment.

29. Having held as so, there is no need to delve into whether the trial magistrate complied with order 21 rule 4 of theCivil Procedure Rules in writing her judgement.

30. I will then proceed to consider whether the appellant satisfied the ingredients to merit an award of damages for the tort of malicious falsehoods as pleaded by the appellant before the trial court.

31. Considering the precedent set out in the aforementioned Kings Wear Limited case supra, the appellant had to prove on a balance of probabilities the following:a)That the defendant published false words of the claimant whether orally, or in writing, to third parties.b)That the publication was maliciousc)That damage was caused which was the natural and reasonable result of the publication.

32. On the first ground, the appellant pleaded that the respondent falsely and maliciously reported that the plaintiff had abused her at Kombewa Police Station leading to her arrest and subsequent prosecution. The respondent’s defence was that she reported the appellant and that the said report was based on actual occurrence.

33. The second ground requires that the said publication be malicious. In this case despite the appellant’s imputation of malice in the respondent’s report, no evidence of the same was adduced to prove malice.

34. The onus was on the appellant to prove that the report made to the police at Kombewa Police Station was not only false but made maliciously.

35. Examining the evidence adduced by the appellant in the criminal court, it is noteworthy that the respondent’s assertion that the appellant abused her was corroborated by PW2 who was also present when the appellant abused the respondent.

36. Further, it is worth noting that the appellant’s acquittal in Maseno Criminal Case No 652 of 2012 was not due to lack of evidence but the fact that the charge brought against the appellant was at variance with the evidence adduced by the prosecution which was to the effect that the appellant abused the respondent in the presence of the respondent and another person which did not constitute creating disturbance in a manner likely to cause a breach of the peace.

37. The appellant has thus failed to prove malice.

38. Having found that the making of the respondent’s report to the police was not malicious, there is no need to delve into whether the said report to the police resulted in damage to the appellant.

39. In the end, having earlier on set aside the trial magistrate’s judgement dated 31/5/2017, I proceed to find that the appellant failed to satisfy the ingredients necessary to warrant an award of damages for her claim for damages for malicious falsehood.

40. Accordingly, I find and hold that this appeal is without merit and is hereby dismissed.

41. I order that each party bear their own costs of this appeal and of the suit in the lower court.

42. This file is closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 15THDAY OF NOVEMBER, 2022R.E. ABURILIJUDGE