[2023] KEHC 23557 (KLR)

Odhiambo v Migori Teachers Savings & Credit Co-operative Society Ltd & another (Civil Appeal 01 of 2020) [2023] KEHC 23557 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23557 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 01 of 2020

RPV Wendoh, J

October 12, 2023

Between

Evans Omondi Odhiambo

Appellant

and

Migori Teachers Savings & Credit Co-operative Society Ltd

1st Respondent

Attorney General

2nd Respondent

(Appeal from the Judgement and Decree of Hon. H. Maritim (SRM) dated and delivered on 29/1/2020 in Migori CMCC NO. 403 of 2014)

Judgment

1. This appeal arises out of Migori CMCC No. 403 of 2014. The appellant sought special damages for Kshs. 558,385/= and general damages for trespass to person, malicious prosecution and interest at the rate of 14% p.a. from the date of judgement until payment in full.

2. The cause of action was triggered by the criminal proceedings in Migori Criminal Case No. 758 of 2009 where the appellant was charged with four different counts of making a document without authority contrary to section 357 of the Penal Code. After close of the prosecution’s case, by a ruling delivered on 7/12/2011, Hon. S.M. Shitubi (CM) found that the evidence placed before the court was insufficient to place the appellant on his defence and acquitted him of the four counts under Section 210 of the Criminal Procedure Code.

3. The appellant commenced civil proceedings claiming damages for malicious prosecution among others. The suit proceeded for hearing with the appellant testifying on 17/10/2019 in support of his case. He also called two other witnesses Owiti Ogola Jairus (PW2) and Peter Wandeya Odero (PW3). The 1st respondent did not call any witnesses to testify on its behalf neither did it produce any documents in its defence.

3. The trial court rendered its judgement on 29/1/2020. The trial court dismissed the appellant’s case with costs. Aggrieved with the findings of the court, the appellant commenced this appeal on the following grounds:-1. That the learned Magistrate misdirected herself on several matters of law and fact;2. That the trial court erred in law particularly the tort of malicious prosecution in failing to comprehend and interpret the various ingredients of the tort and their applicability in the instant case;3. That the trial court erred in failing to appreciate that the accused/plaintiff was acquitted of all the charges in Migori SPM Criminal Case No. 785 of 2009 under Section 210 of the Criminal Procedure Code since the prosecution failed to establish a prima facie case against the accused and therefore a reasonable and probable cause was lacking to justify the prosecution of the accused/plaintiff;4. That the trial court erred in misinterpreting the term “malice” or “malicious.”5. That the trial court erred in law of practice and procedure in failing to appreciate the role of evidence after filing pleadings and effects on the suit.

4. The appeal was canvassed by way of written submissions and all the parties filed and exchanged their respective submissions.

5. The appellant segmented the grounds of appeal and submitted on them. On grounds 1, 9 and 10 it was submitted that there is no evidence from the respondent on which the court can disown the appellant’s case; that the appellant proved his case on a balance of probabilities and in light of the fact that the respondents had not adduce any evidence, then judgement ought to have been entered in his favour. To support this, the appellant relied on the case of John Lennox Kochieng vs The County Assembly Service Board and the provisions of Section 3 (1) of the Evidence Act.

6. On grounds 2 and 5, it was submitted that before the prosecution decides to charge an accused, they must diligently peruse witness statements and prepare the charge on the basis of the statement; that the trial court’s ruling acquitted the accused and the gist of the ruling was that the prosecution was negligent and did not show any diligence in investigating the complaint before deciding to charge and prosecute the appellant.

7. On grounds 3, 4, 6, & 7 the appellant submitted that the lack of prima facie case shows that there is no reasonable and probable cause and the evidence shows that the prosecution was motivated by the internal wrangles within the 1st respondent; that prosecution witnesses exonerated the accused in their statements and therefore the prosecution case was without reasonable and probable cause.

8. On ground 8 on damages, the appellant submitted and urged the court to enter judgement for special and general damages as prayed at the rate of 12 % p.a. from the date the amounts were awarded and from the date of filing suit on the special damages awarded. The appellant also asked for costs of the suit together with interest at the rate of 14% p.a.

9. In the 1st respondent’s written submissions dated 22/5/2023, it was submitted that in claims for malicious prosecution, the claimant has to prove four ingredients namely: that the complainant and the State instituted the criminal proceedings; that the criminal proceedings ended in favour of the person who was charged; that the criminal proceedings were instituted without reasonable and probable cause and that the criminal proceedings were actuated by malice. The 1st respondent relied on the Court of Appeal case of National Oil Corporation vs John Mwangi Kaguenyu & 2 Others (2019) eKLR where the court reiterated the principles for a tort of malicious prosecution to be established.

10. It was further submitted that the appellant had to lead evidence that the 1st respondent being an artificial person, there was an employee, servant or lawful agent of the 1st respondent who was actuated by malice. To support this position, the 1st respondent referred the court to the case of Nzoia Sugar Company Ltd vs Fungututi (1998) eKLR where the Court of Appeal dealt with the resultant proceedings of malicious prosecution claims between a natural and legal persons. The appellant submitted that the criminal proceedings were instituted against the appellant and the criminal proceedings ended in favour of the appellant when he was acquitted and therefore the first and second ingredients of malicious prosecution were deemed proven but the appellant did not prove the other two last ingredients and the court rightly dismissed the appellant’s suit.

11. On reasonable and probable cause, it was submitted that from the proceedings in the trial court, there was a probable cause for the 1st respondent’s employee to have arraigned the appellant in court; that PW3 who was a witness of the prosecution in the criminal case, testified that the Sacco may have been right since they saw the anomaly. It was stated that the filing of the complaint with the police is what any prudent, cautious and reasonable person would have done as acknowledged by PW3. The 1st respondent urged the court to be persuaded by the explanation given on what constitutes reasonable and probable cause in Kagane vs Attorney General (1969) EA 643 which cited several English decisions. Further, the appellant submitted that the presumption in law is that prosecutorial agencies are independent and professional and once a complaint is filed, they must investigate it and before then present it before a court of law; that there is a clear-cut case that the police or the prosecution did not believe in the authenticity of the 1st respondent’s case or in its criminal complaint.

12. On whether the charge was actuated by malice, the 1st respondent submitted that the appellant’s witnesses testified that there were ousters of official of the 1st respondent and tried to relate the ousters to the criminal complaint against the appellant; that the appellant was not part of the persons who were subjected to elections, the ousters and the tribunal proceedings which affected the leadership of the 1st respondent; that it was not shown that the appellant was tied to the political intrigues of the 1st respondent which led to the criminal complaint being made.

13. The 1st respondent urged the court to find that the appellant did not prove all the four (4) ingredients required to prove the tort of malicious prosecution and the appeal should be dismissed with costs to the 1st respondent.

14. The 2nd respondent filed its written submissions on 15/3/2023 and reiterated the elements to be proved in a case of malicious prosecution as was held in the case of Murunga vs Attorney General (supra). The 2nd respondent also referred to the case of Kagane & Others vs The Attorney General & Another where the ingredients of tort of malicious prosecution were laid down. It was submitted that the appellant did not present any evidence before the trial court to demonstrate that the 2nd respondent had acted maliciously when it charged him. It was further stated that it was the duty of the trial court to sift through the evidence adduced and make a determination whether the prosecution had proved its case against the appellant herein.

15. On whether the learned magistrate disregarded the pleadings of the appellant and his evidence in her judgement, it was submitted that the fact that the defence did not call witnesses would not have changed the outcome because the police through the investigating officer testified and produced all the documents used to prefer charges; that the respondents took part in the proceedings through cross examination of the witnesses and they filed submissions.

16. It was also submitted that there is no evidence that the 2nd respondent colluded with the 1st respondent to maliciously prosecute the appellant without probable cause; that in a case of this nature, it is the appellant to prove that there was no basis for the complaint. The 2nd respondent relied on the findings of Margaret Ndege & 3others vs Moses Oduor Ademba (2021) eKLR.

17. Whether the learned Magistrate failed to set out the damages she would have otherwise awarded, it was submitted that assessment of damages is a discretion of the court and in the case of Morris Kyengo Makovu vs Inspector General of Police & 3 Others (2021) eKLR where the plaintiff had not proved its case on a balance of probabilities, the suit was dismissed.

18. On whether this appeal is valid and arguable before this court, it was submitted that the appellant had not adequately demonstrated that the appeal had a likelihood of success and it is an abuse of the court process.

19. This being the first appeal, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusion but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. See the decision in Selle & Another vs Associated Motor Boat Co. Ltd (1968) EA 123.

20. It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or on demonstrably wrong principles not supported by evidence or on wrong principles of the law. This was the finding of the Court of Appeal in Mbogua Kiruga v Mugecha Kiruga & another (1988) eKLR.

21. Guided by the above principles, I have considered the appeal, the proceedings in the trial court and the submissions by both parties. The main issues for consideration are:-a.Whether the elements of the tort of malicious prosecution were established.b.Whether the appellant is entitled to damages.

22. The court in the case of Silvia Kambura vs George Kathurima Japhet & 2 others (2021) eKLR explained the rationale behind the proceedings for malicious prosecution as follows: -"The tort of malicious prosecution is an intentional tort that provides redress to a Plaintiff, for losses incurred following unsuccessful and malicious proceedings which are initiated without any lawful reasonable and/or probable cause by the Defendant. Although it is within any person’s rights to approach the Courts and/or other quasi-judicial bodies to seek redress for wrongs committed against them, this right must be exercised within the confines and parameters of the law, for genuine and lawful reasons. If the right is exercised with other ulterior motives, this constitutes abuse of process, which is in itself a wrong and/or violation attracting a claim for damages for malicious prosecution. Traditionally, the tort of malicious prosecution, as known in English Common law was only available to Plaintiffs against whom malicious criminal proceedings had been instituted and subsequently determined in their favour. The applicability of the tort is however extending to cover the domain of malicious civil proceedings. See the UK Supreme Court, case of Willers vs Joyce and Another (2016) UKSC 43 50. The matter herein was however filed following conclusion of criminal proceedings.”

23. In George Masinde Murunga vs Attorney-General (1979) eKLR the Court examined the elements of the tort of malicious prosecution, that the plaintiff must prove five things: -i.That a prosecution was instituted by the defendant or by someone for whose acts he is responsible.ii.That the prosecution terminated in the plaintiff’s favour.iii.That the prosecution was instituted without reasonable and/or probable cause.iv.That the prosecution was actuated by malice.v.The plaintiff must have suffered damage.

24. In Attorney General vs Peter Kirimi Mbogo & another (2021) eKLR the court held that the five elements must be applied conjunctively in order for a claim of damages for malicious prosecution to be sustained. This court will proceed to examine the elements vis a vis the arguments by each party.

25. There is no dispute that the 1st respondent through the Office of the Director of Public Prosecution, instituted criminal proceedings against the appellant. The appellant was charged with four counts of making a document without authority contrary to Section 357 of the Penal Code. The alternative charge was uttering a document with intent to deceive and defraud contrary to Section 357 (b) of the Penal Code.

26. On the second element, the court proceedings indicate that the prosecution presented 7 witnesses to prove its case. On 7/12/2011, the trial court rendered its ruling on whether the accused had a case to answer. The trial court acquitted the appellant of all the four counts under Section 210 of the Criminal Procedure Code. The Learned Authors in Winfield & Jolowicz on Tort, 20th Edn, at page 681 stated:-‘The Plaintiff must show that the prosecution ended in his favour, but so long as it did so it is of no moment how this came about, whether by a verdict or acquittal, or by discontinuance of the prosecution by leave of the court, or by quashing of the indictment for a defect in it, or because the proceedings were coram non judice, or by nonsuit.’

27. In the instant case, it is the trial court which acquitted the appellant. Therefore, the second element that the proceedings terminated in favour of the appellant is satisfied.

28. In order to determine whether there was any probable and/or reasonable cause, the reasonable man test applies. In Attorney General vs Peter Kirimi Mbogo (supra) the court quoted with approval the case of Hicks v Faulkner (1878) 8 Q.B.D 167 at 171, where the court adopted the following definition of reasonable and probable cause: -‘An honest belief in the guilt 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 any ordinarily 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.’

29. In the case of Kagane vs The Attorney General (supra) the court had this to say about reasonable and probable cause:-“Whether there was reasonable and probable cause for the prosecution is primarily to be judged on the objective basis of whether the material known to the prosecutor would satisfy a prudent and cautious man that the accused was probably guilty.”

30. In Samson John Nderitu vs The Attorney General (2010) eKLR the court held as follows in regard to the element of reasonable and probable cause: -"It is trite and this court, has judicial notice of the fact that before an accused person is taken to court, and arraigned in court for criminal prosecution, the prosecuting authority namely the police of whatever unit, whose functions fall under the office of the defendant, usually carry out investigations, record statements from potential witnesses, analyze the facts to determine if the facts disclose an offence before arraigning such a person in a court of law. The assumption is that the same was followed before arraigning the plaintiff in court.”

31. From the foregone discussion, a reasonable and probable cause is dependent on the facts, circumstances and materials which the prosecution had when charging the accused. It would thus be prudent for the court to interrogate the facts upon which the charges were founded. In other words, there has to be an honest belief upon which the court finds the existence of guilt based on the facts before it, and assuming that they are true, will lead to a conviction. It should also be remembered that an acquittal is not necessarily a sufficient ground to commence a malicious prosecution suit.

32. I have considered the evidence by the prosecution’s witnesses. This court has understood that the appellant was being accused of allegedly forging pay slips for the months of March, April, May and June of 2009. The appellant was then serving as the Manager for the 1st respondent. Maurice Ochieng Wao PW1, the then Loans Officer testified that he was given approval to prepare a template which would then print the pay slips; that for the pay slip to be valid, it had to be certified by members of the executive committee; that the contents of the pay slip comes from the payroll. On cross - examination, PW1 testified that the accused followed the proper procedure in procuring a loan of Kshs. 110,000/= from Co-operative Bank which was approved by the Sacco’s Committee. On re-examination, he testified that he did not know what the appellant was supposed to earn.

33. Thomas Ooko Okuku PW2, was serving as the accountant. He testified that if one needed a pay slip, they would seek assistance from the system administrator. On cross - examination, he testified that the template was fed into the computer and anybody could extract; that the pay slips do not show who extracted them from the computer whether the accused or any other person. On re-examination, he stated that the pay slips are made from a computer at the secretary’s office and anyone could access the secretary’s place to make a pay slip and fill in figures.

34. Peter Wadeya Odero PW5 was the Secretary to the Sacco. He testified that he knew the appellant earned Kshs. 29,800/= which was what was indicated in the pay slips; that the pay roll instead indicated that the basic salary was Kshs. 32, 280/=. PW5 stated that the pay roll they used was type written but the one which was before court was handwritten and hence it was not the pay roll that they used. On cross examination, PW5 testified that some information in the pay roll had been erased. He further stated that the documents for application of the loan by the appellant was in order and he signed them.

35. PW7 CPL Hassan Walasa No. 77262 who was the investigating officer testified that there was a discrepancy in the figures stated in the pay slip attached to the loan application forms and the office record. He stated that from the pay slips, the appellant was earning Kshs. 18,812/= for the three months of April, May and June of 2009; while in the office records, it showed that the appellant was earning Kshs. 27,891/= for the months of April, May and June 2009. It was further testified that in the pay roll extract, the net salary was Kshs. 27, 891/= for the months of April, May and June 2009 which was signed by the accountant, chairman and the appellant. The investigating officer further stated that upon inquiry on why the appellant’s net salary was reduced, he was told that it was to enable him to secure a bigger loan because of the one third rule of an employee’s basic salary.

36. During cross-examination, PW7 stated that there was an overwriting in the particular details of the entries made in the payroll against the name of the appellant in respect of the Sacco loan balance and medical allowance. He further stated that the same applied to the names of John Otieno and Patricia Owour and upto eight other people.

37. This court has not had the advantage of seeing the alleged pay roll and the pay slips. Going by the evidence of the prosecution witnesses, it is not in doubt that there was a difference in figures of the net salary of the appellant from what was contained in the pay roll and the pay slip. The amount stated in the payroll as the appellant’s alleged net salary was Kshs. 27,891/= while the amount in the pay slip it was Kshs. 18,812/=. The amount in the pay slip was a reduction. It was also stated that after being satisfied that the documents are in order, the loans committee approved the appellant’s application for the loan. It also transpired that there was no specific officer designated to prepare and print the pay slip. Anyone would have access to the computer and generate a pay slip. There was totally no reason why the blame fell on the appeallant.

38. This court is unable to comprehend how the appellant intended to defraud the respondent by reducing either by himself or anyone else, the net salary in his pay slip in order to access a huge loan. If indeed, there was alteration, the logical thing to do was an alteration indicating a higher net salary in the pay slip in order to access a higher amount of loans. The reverse cannot be true. In addition, the appellant having been the chairman of the Sacco and with the access of the computer which had the pay slip template, he would have easily influenced to have a pay slip done in his favour. Further, there is evidence to the effect that when the disciplinary committee sat to look into the issue, the appellant was not present but he received a letter relieving him from his duties which was quite telling.

39. In Peter Nagweya Chagowe Vs A.G (2006) eKLR the court had this to say regarding reasonable and probable cause: -“Whether there was reasonable and probable cause for the prosecution is primarily to be judged on the objective basis of whether the material known to the prosecutor would satisfy a prudent and cautious man that the accused was probably guilty.”

40. The standard of proof in criminal cases is beyond reasonable doubt. I am alive to the fact that not every acquittal in criminal cases is sufficient to institute malicious prosecution claims. In this court’s view, had the prosecution carefully analyzed the witness statements and the outcome of the investigations, there was no reasonable and probable cause to commence and sustain criminal proceedings against the appellant. The complaint by the 1st respondent was actuated by malice. I therefore find that the prosecution had no probable and reasonable cause to commence the criminal proceedings against the appellant on the four different counts of making a document without authority contract to section 357 of the Penal Code and the alternative charge of uttering a document with intent to deceive and defraud contrary to Section 357 (b) of the Penal Code.

41. On the special damages, the appellant particularized in his plaint at paragraph 7 the special damages sought. I have considered the receipts produced in support of this claim. They sum upto Kshs. 551,705/=.

42. On the damages suffered, the appellant submitted that he was a manager of a Co-operative Savings Society and was incarcerated in a police cell and remanded severally during the trial. Although the appellant has now asked for aggravated damages, this was not pleaded. The appellant prayed for judgement on special damages, general damages for trespass to person and malicious prosecution.

43. The award of general damages is a discretion of the court. The appellant did not demonstrate how the prosecution case impacted his professional and/or personal life. The prosecution case commenced on 13/9/2010 and terminated on 10/10/2011 which is not an unreasonable time for the prosecution to have concluded its case. I find that a sum of Kshs. 1,000,000/=is commensurate as general damages for malicious prosecution.

44. In the premise, I set aside the judgement and decree of Hon. H. Maritim dated and delivered on 29/1/2020 and hereby enter judgement against the defendants jointly and severally for:-i.Special Damages - Kshs. 551, 705/= together with interest from the date of filing suit at court rates.ii.General Damages - Kshs. 1,000,000/= together with interest from the date of judgement at court rates.iii.Costs of the suit and this appeal awarded to the Appellant.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 12TH DAY OF OCTOBER 2023. R. WENDOHJUDGEJudgement delivered in the presence of;N/A for the Appellant.Mr. Odero for the 1st Respondent.N/A for the 2nd Respondent.Emma & Phelix Court Assistants.