[2017] KEHC 3174 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL APPEAL NO. 36 OF 2014

(An appeal from the Judgment of the Principal Magistrate,

Runyenjesin PMCC No. 45 of 2011 dated 22/10/2014)

PETER NYAGA MICHENI...........................................APPELLANT

V E R S U S

JAMES THATHI MUCHIRI.............................1ST RESPONDENT

THE ATTORNEY GENERAL...........................2ND RESPONDENT

J U D G M E N T

1. The appellant was dissatisfied with the judgment of Runyenjes Ag. Principal Magistrate in PMCC No. 45 of 2011 and lodged this appeal. His claim is for general damages for malicious prosecution and special damages of Shs.53,000/= being legal fees spent in Runyenjes criminal case No. 787 of 2010 which was dismissed for lack of proof.

2. Following two reports of assault at Runyenjes police station by the appellant and by the respondent, the appellant was charged with assault causing actual bodily harm and was acquitted under Section 210 of the Criminal Procedure Code. He then sued the respondent and the Attorney General for damages in the unsuccessful proceedings which gave rise to this appeal.

3. The grounds relied on in this appeal are that the magistrate erred in failing to consider all the evidence presented to him by the appellant including the ruling in the criminal case.

4. It is further contented that the injuries sustained by the 1st respondent may have been caused by hitting on something. It is claimed that the police did not conduct any investigations in the criminal case and that the learned magistrate erred in believing the defendant and disregarding the respondent's evidence. Finally, it is contended that the judgment was against the weight of evidence.

5. The duty of the first appellate court was explained in the case of KENYA PORTS AUTHORITY VS KUSTON (KENYA) LIMITED [2009] 2 EA 212 by the Court of Appeal that:-

On a first appeal from the High Court, the Court of Appeal should 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 allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.

6. The appellant's evidence was that on the material day, he was at Runyenjes Municipal stage. He said he is a matatu driver operating along Embu/Meru road. As he was picking passengers, he was confronted by the 1st respondent who was an employee of Neno Sacco who demanded that the appellant pays Shs.50/= for the sacco charges.

7. The appellant resisted arguing that he was not a sacco member. The chairman of the sacco blocked the matatu of the appellant and came out threatening him with assault if he failed to pay. The 1st respondent then joined the fray and hit the appellant with a fist on the head and on the chest knocking him down.

8. The 1st respondent made a report of assault against the appellant at Runyenjes police station. The appellant found him at the station when he went to report that he had been assaulted. The investigations resulted in the appellant being charged with assaulting the respondent. He was subsequently acquitted for no case to answer.

9. The appellant testified that the police did not conduct any investigations and that the prosecution was activated by malice on their part. He claims that he suffered loss and ought to be compensated by way of general damages. He produced four receipts amounting to Kshs.53,000/= issued by Rose Njeru & Co. Advocates for payment of legal fees urging the court to award him special damages.

10. The respondent's evidence was he was an employee of Neno Sacco. He was called on phone by one of his stage attendants and informed that someone had closed the door of one of the Sacco vehicles. He then rushed to the Runyenjes stage to check on what was happening. He found that the report given to him was true. As he opened the door of the vehicle, the appellant approached him from behind and hit him on the head knocking him down. He sustained injuries on the left hand and reported the matter at Runyenjes police station. He was issued with a P.3 form and treated. He testified as a witness the criminal case.

11. To the parties filed submissions in this appeal through their respective counsels. Ms. R. Njeru appeared for the appellant while Mr. Ithiga represented the respondent.

12. The 1st respondent argued that the appellant did not prove his case on malicious prosecution against the respondents and relied on the case of HOMABAY H.C. Civil Appeal No. 17 of 2014which sets out the four particulars that must be proved in a suit for damages for malicious prosecution. Citing the case of NZOIA SUBA COMANY LTD VS FUNGUTUTI [1988] KLR 399,the respondent further submitted the mere acquittal of a criminal charge is not sufficient ground for a suit of malicious prosecution and that the plaintiff must prove spite or ill will against the prosecutor.

13. It was further submitted that the proper defence in a suit for malicious damages is the Attorney General alone and that the respondent herein ought not to be a party.

14. The 2nd respondent echoed the arguments of the 1st respondent and interrogated the grounds of appeal reaching a conclusion that the appellant had not proved any of them.

15. For the issue of whether investigations were carried out by the agents of the 2nd respondents, the case of DAVID MUNGAI KINYANJUI & 2 OTHERS VS ATTORNEY GENERAL [2012] eKLR Nairobi High Court Civil Case No. 318 of 2009 was cited where it was held that so long as police take adequate and reasonable measures after the arrest, they are not to be faulted for doing their duty.

16. The 2nd respondent relied on the case of KATERREGA VS ATTORNEY GENERAL [1973] EA 289 where the court held that the appellant had a duty to proof malice or ill-will on part of the respondents for him to be entitled to damages.

17. The appellant's submissions argued the grounds of appeal emphasizing that the criminal charge against him was false, malicious and a clear case of abuse of power by the police. The malicious prosecution subjected the appellant to mental anguish, loss and damage. Having been acquitted of the charge that could not hold, the appellant argued that he was entitled to damages which facts he alleges were ignored by the trial court. It was further argued that had the police carried out proper investigations, the appellant would not have been charged. The case of GEORGE MASINDE MURUNGA VS ATTORNEY GENERALwas cited by the appellant on the essentials of malicious prosecution proceedings.

18. The issue for determination in this appeal are as follows:-

(a) Whether the learned magistrate considered all the material before him including the ruling in the criminal case and the doctor's evidence.

(b) Whether the appellant proved that the prosecution was actuated by malice in preferring criminal charges.

(c) Whether the appellant was entitled to damages.

(d) Who will meet the costs of the case.

19. It is not in dispute that both the appellant and the 1st respondent had a confrontation at Runyenjes Municipal stage over some charges by Neno Sacco. This confrontation and commotion resulted in the appellant and the 1st respondent sustaining soft tissue injuries. The two reported at Runyenjes police station that each was assaulted by the other. Each of them had visible injuries and were issued with P.3 forms for treatment.

20. This is supported by the evidence of the investigation officer in the criminal proceedings and by that of the parties. The 1st respondent presented witnesses who recorded statements while the appellant did not avail any witness. The appellant admitted in cross- examination that he delayed returning his P.3 form. The investigating officer said the P.3 was later seen in the police file.

21. I have perused the judgment of the learned magistrate and noted that he dealt with all the relevant issues in the case before him. He evaluated the evidence of both parties adequately and gave sound reasoning for his decision. In particular, the court appreciated the proceedings in the criminal case that the trial terminated in favour of the appellant. The ruling was therefore taken into consideration by the court to the extent of its relevant to the case.

22. I reach a conclusion that ground 1 has no basis.

23. Regarding ground 4, the magistrate evaluated the evidence relating to the issues before him. The finding he reached on the main issues did not require that he interrogates the cause of the injury for this was an issue for decision by the criminal court.

24. I will proceed to determine grounds 2, 3, 5 and 6 together for they revolve around the issue of investigations and alleged malice on the art of the police.

25. The 1st respondent had made a report with the police that the appellant had assaulted him. The statements of his witnesses formed part of the investigation material. The investigating officer said in his evidence that from the evidence he gathered, he was convinced that the appellant had assaulted the respondent. At that time, the appellant was yet to return his P.3 form or brought his witnesses to record their statements. The arrest was therefore not wrongful and so was the brief confinement before he was charged.

26. It was held in the case of DAVID MUNGAI KINYANJUI case (supra) that where there is a genuine complaint made to the arresting officer, the arrest will be held to be lawful. It was observed that the police officer upon arrest may do what is reasonable to facilitate investigation of the matter.

27. The arrest of the appellant cannot be said to have been unlawful since it was based on a genuine complaint. The act of the arresting officer was reasonable.

28. In regard to whether the prosecution was actuated by malice, it is trite law that the appellant must prove that there was no reasonable cause.

29. The appellant was acquitted of the charge in the criminal case. It is for this reason that he argues that he ought to have been successful in his claim for damages.

30. It was held in the case of JAMES KARUGA KIIRU VS JOSEPH MWAMBURI & 3 OTHERS Nairobi Civil Appeal No. 171 of 2000 that to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is the burden or proving that the prosecutor did not act honestly or reasonably being on the person prosecuted.

31. Similarly, it was held in the MUSIC COPYRIGHT SOCIETY OF KENYA VS TOM OGOW [2014] eKLR that:-

An acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company.

32. Both the appellant and the 1st respondent were involved in a fracas and came into physical confrontation resulting in injuries sustained by each of them. Each of them reported to the police and the complaints were investigated. The police officer found evidence to charge the appellant. None of the two people had a right to cause fracas and hurt the other. The investigating officer explained that the 1st respondent presented evidence while the appellant did not.

33. The appellant did not present any evidence that the 1st respondent was working with the investigating officer to have him prosecuted. The officer worked independently and defended his action in court during the hearing of the criminal case. I find that the appellant did not prove any malice or ill-will against the investigating officer. As such, the 2nd respondent who bears vicarious liability cannot be faulted in these proceedings.

34. The 1st respondent having lodged his complaint and presented the witnesses to record statements had nothing more to do with the investigations. I find that no liability can be attributed to him.

35. It is my finding that the judgment of the magistrate was based on cogent evidence and it is hereby upheld.

36. Consequently, this appeal fails and it is accordingly dismissed with costs.

37. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF OCTOBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Njeru for the Appellant and holding brief for

Mr. Ithiga for the Respondent