[2017] KEHC 10128 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA-BAY

CIVIL APPEAL NO. 3 OF 2016

PAUL MBOYA OCHIENG.........................................APPELLANT

- VERSUS -

ISIAH OMWANGE ONGORO...............................RESPONDENT

(An appeal from the judgment and decree of Oyugis SRM’s Civil Case

no. 118 of 2014 (J.P. NANDI SRM) DATED 10TH February, 2016)

JUDGMENT

1. ISAIAH OMWANGE ONGORO (the respondent) had sued the appellant (PAUL MBOYA OCHIENG)on grounds that 25th April 2012, the appellant without lawful cause reported to the OCS OYUGIS police station, alleging that the respondent had stolen assorted quantity of sugar valued at Kshs 53,200/=, which complaint the appellant knew and/or had reasons to know was not true. Subsequently the respondent was arrested, interrogated and there after held in custody awaiting arraignment in court.

2. The respondent was arraigned in court on the 30/4/2012 vide Oyugis PMCR NO. 274 of 2012 and charged with the offence of store breaking and committing a felony contrary to section 306 (a) of the Penal Code. The respondent contended that his arrest, arraignment and prosecution were malicious, unfounded and/or reckless.

Consequently, the respondent was deprived of his liberty and freedom under the constitution without lawful cause and subjected to malicious prosecution on the basis of fictitious and trumped up charges. The respondent was subjected to trial and was found guilty and convicted of the charges against him. Subsequently he filed an appeal vide HOMA BAY HCCRA NO.7 OF 2014, which was heard and he was acquitted of the charges. The respondent requested the court to adopt the proceedings in the aforesaid appeal. He prayed for general damages for unlawful arrest, wrongful confinement and malicious prosecution and for special damages of advocates professional fees (kshs.100,000/=) and court fees on proceedings and judgment (kshs.2280).

3. At the hearing in the trial court, the respondent stated that he was a teacher by profession and he did not know the appellant before this case. He adopted his statement dated 9/12/2014 and the exhibits listed in his bundle of documents as evidence.

4. In cross-examination by the 2nd defendant he stated that the police officer told him the reasons for his arrest was that he has stolen sugar belonging to the appellant. He was taken to OYUGIS Police Station but he did not record his statement. He stated that the appellant was the one who reported the matter to the police and he had not known the police before hence he had no grudge against them. However he sued them because they arrested him. He added that he was assaulted while in the police station cell and lost a tooth but did not go to the hospital.

5. The appellant in his statement of defence denied all the claims by the respondent maintaining that the arrest, detention and arraignment of respondent were effected independently by the police and they were not his agents or servants. Further, that if they were indeed effected, it was as a result of prima facie case borne out by the fact that the respondent was acquitted only after a finding of a case to answer.

6. He gave evidence to the effect that when he realized that his sugar was stolen, he tried to trace who had stolen it. A lady informed him that she had seen someone loading kilos of sugar on motorcycle behind the appellant’s shop. He rushed to the venue and indeed found a motorcycle rider loading sugar on his motorcycle. To his advantage he knew the rider, he asked him who had assigned him the work and he told him it was POLYCARP OMONDI MARWA

7. He then went to the respondent who was operating the premises where the sugar was stored with the said POLYCARP OMONDI MARWA to ask him if he was aware that the appellant’s sugar was stored there, but he denied knowledge thereof. Upon the respondent opening the door to the premises, the appellant and other members of the public recovered a 5kg sugar package. POLYCARP OMONDI MARWA was confronted about the sugar by the appellant and he admitted to have stolen it and was willing to pay for the cost of sugar in installments.

8. As such, the appellant and POLYCARP OMONDI MARWA decided to go to the police station to record the modalities of payment, in the process the police officers accompanied them to where the sugar was stored and ended up arresting the respondent herein. The police officers carried out their investigation and decided to charge the respondent. The respondent and POLYCARP OMONDI MARWA were charged and convicted. The respondent appealed and the appeal was allowed, he was then acquitted of the charges.

9. The respondent relied on the HIGH COURT OF UGANDA AT KAMPALA, CIVIL APPEAL NO. 30 OF 1964, SEKADDU VERSUS SSEBADDUKA (SHERIDAN, J)stating that the 1st defendant must take and bear the responsibility for having lodged the complaint and HIGH COURT OF KENYA AT NAIROBI, CIVIL CASE NO. 1774 OF 1994, JOHN KAMAU ICHARIA VERSUS PAUL NJIRU AND ANOTHER (JM.KHAMOI.J) where a plaintiff was awarded Kshs.200,000/- for general damages for unlawful arrest, Kshs.200,000/- for wrongful confinement and Kshs. 120,000 for exemplary damages. He proposed kshs.1,000,000 for general damages.

10. On the other hand, the appellant submitted that he had right to report any criminal offence against him to the relevant authorities for an action and is up to that authority to conduct proper investigations and only if they are sufficient evidence to charge the offender. Therefore he did not violate the respondent’s constitutional rights by reporting a crime hence he was not liable for the respondent’s arrest, detention and subsequent prosecution.

11. The trial court in arriving at its decision relied on Chrispine Otieno Caleb vs Attorney General (2014) eklrwhere it was held that the law surrounding the malicious prosecution is well settled and cited the case of Mbugwa vs. East Mento District Administration (1972) EA. 352where the East Africa Court of Appeal held that four essential ingredients have to be satisfied namely;

a) Criminal proceedings must have been instituted by the defendant,

b) The defendant must have acted without reasonable or probable cause,

c) The defendant must have acted maliciously, and

d) The criminal proceedings must have been terminated in the plaintiff’s favour.

12. The trial court found that all the four ingredients were satisfied and awarded the respondent Kshs.300,000/- for general damages of unlawful arrest, wrongful confinement and malicious prosecution. He also awarded Kshs.50,000/- for special damages, as the respondent was able to produce a receipt for advocates professional fees of Kshs 50,000/-.

13. He entered judgment in favour of the respondent against the appellant and the 2nd defendant jointly and severally. The appellant being dissatisfied by the judgment and decree filed this appeal on grounds that the trial magistrate based his decision on the erroneous decision in the criminal proceedings. Further that the evidence demonstrated liability only against the 2nd respondents

14. He stated that the 4 key ingredients which must be proved by a person seeking for compensation for unlawful arrest, wrongful confinement and malicious prosecution stated in KISII HCCA NO.101 OF 1997 (JOSEPH NYAKUNDI ONGERA VS MABIRA NYABERI ONCHOKA while citing the decision of MURUNGA vs ATTORNEY GENERAL (1979)KLR138 were not satisfied in this case.

15. In addition, he submitted that the trial court relied on the premises that the appellant did not furnish any evidence to support its case, but failed to appreciate that the typed proceedings of the criminal case which the respondent produced would assist it to decipher whether the respondent had reached the threshold and ingredients for claim being advanced. He emphasized that the burden of proof in civil case is on the plaintiff and the fact that the defendant did not produce any evidence is immaterial.

16. In urging the appeal to be allowed, the appellant referred to the case of LAWRENCE MUCHIRI KAMUTU (supra) where it was held that where an accused person is placed on his defence, there is a reasonable and probable cause as to why the criminal process was initiated and undertaken and the complainant and prosecutor cannot be faulted.

17. On the other hand, the respondent insisted that the fact of his acquittal was one of the ingredients in proving a claim for malicious prosecution. He pointed out that an explanation had been given as to how the sugar got in to his premises and in any event, POLYCARP OMONDI MARWA admitted to have stolen the sugar, yet the appellant still lodged a complaint against him. He further submitted that the trial magistrate determined the matter in a manner consistent with evidence on record.

18. The respondent argued that there are some instances where that one should not report to the police especially when such action is informed by witch hunting or mala fides. He based this in the fact that the appellant had already made inquiry and found out who had stolen his sugar; so there was no reason to make a complaint against him to the police.

19. He submitted that the appellant had an opportunity to tender evidence in court but failed to do so. Hence the trial magistrate considered the uncontroverted evidence of the respondent. He stated that the act of the appellant of lodging a complaint was informed by malice and ulterior motives and insisted that officers of the 2nd defendant arrested the respondent without undertaking any investigations. He argued that the appeal herein is devoid of merit and prayed for the dismissal with costs to the respondent.

ISSUES TO BE DETERMINED

a) Whether the respondent’s claim was proved on balance of probabilities

b) Whether the defendant was liable for the respondent unlawful arrest, wrongful detention and malicious prosecution

ANALYSIS OF THE ISSUES TO BE DETERMINED

20. Was the respondent’s claim proved? In civil matters the onus of proof is on the one who alleges to have been wronged and is on the balance of probabilities. It is settled law that in a claim for compensation for unlawful arrest, wrongful confinement and malicious prosecution there are 4 ingredients that have to be satisfied before one can be compensated. These ingredients are laid down in plethora of case laws that were cited by the parties herein. I wish to refer to the case of KENYA FLUORSPAR COMPANY LIMITED V WILLIAM MUTUA MASEVE & ANOTHER [2014] eKLRwhere the case of MURUNGA vs ATTORNEY GENERAL (1979) KLR138were cited, therein the 4 ingredients were analyzed. These ingredients are criminal proceedings must have been instituted by the defendant, the defendant must have acted without reasonable or probable cause, the defendant must have acted maliciously, and the criminal proceedings must have been terminated in the plaintiff’s favour.

21. In the above mentioned case the plaintiff instituted a case against the defendant and Attorney General and it was clear that the defendant filed the complaint to the police and escorted the plaintiff to the police station to be arrested. This abovementioned case is different from this case in that in this case the police officer arrested and instituted the criminal proceedings against the respondent in the process of conducting their investigation. Therefore, for the appellant to be held equally liable with the police it has to be proved that he instigated the arrest and prosecution of the respondent.

22. As a matter of fact, the appellant relied on the proceedings of the criminal case and stated that nowhere in his evidence in court did he say that the respondent had stolen his sugar. On the other hand, the respondent stated that the appellant had done his inquiry and had the knowledge that he was not the one who stole his sugar but still allowed him to be arrested and charged. Looking at the evidence before this honorable court it is clear that the police officers were the ones who carried their investigation and decided to institute criminal proceeding against the respondent.

23. The 2nd ingredient, the defendant must have acted without reasonable or probable cause; the respondent did not demonstrate how the appellant acted unreasonably and without probable cause. He had already made his inquiries which led him to the culprit-all he did was to inform the police who then escalated matters. In the case of KENYA FLUORSPAR COMPANY LIMITEDthe case of HICKS VS FAWKERS (1878)was quoted and it defined probable and reasonable cause as follows;

“Reasonable and probable cause is an honest belief in the guilty 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 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.”

24. In his statement in trial the respondent clearly stated that he did not know the defendants prior to the incident and as submitted by the appellant his interest was to recover the cost of sugar that was stolen, it was not to institute criminal proceeding. As such it cannot be said that his actions were laced with malice, hence the 3rd ingredient was not satisfied.

25. It is clear that the respondent was acquitted of the charges preferred against him when he appealed. Therefore the last ingredient was satisfied.

WHO WAS LIABLE

26. The appellant did not submit any evidence in the trial court, instead he choose to file his written submissions to the effect that he cannot be held liable just because he filed a genuine complaint with the police. On appeal, he submitted that the fact that he did not tender his evidence in the trial court did not automatically give the respondent a win over him as was held by the learned trial magistrate. The respondent supported the decision of the trial magistrate in that his allegations were uncontroverted hence automatically meant that the appellant had agreed with the allegations.

27. The fact is that the evidence before the trial, the proceedings from the criminal court, clearly showed what transpired in the institution of criminal proceedings and the part that the appellant played. Be that as it may, the respondent supported his case in the trial court while appellant did not defend it. However the fact that the respondent’s case was not contested does not automatically mean that the judgment had to be entered in his favour because the bottom line is - did the appellant act recklessly in making his report to police? Indeed the trial magistrate acknowledged that the mere acquittal in the criminal process did not prima facie prove dishonest or unreasonable action. In my view the respondent did not satisfy the 3 ingredients required for one to be compensated for unlawful arrest, wrongful confinement and malicious prosecution. Consequently the appellant should not have been held liable for the respondent’s arrest and the trial court’s decision is set aside. The appeal is merited and is allowed.

Delivered and dated this 3rd day of November, 2017 at Homa Bay

H.A.OMONDI

JUDGE