[2017] KEHC 8307 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL APPEAL NO. 15 OF 2013

RUTHAKA FARMERS CO-OP. SOCIETY...............................1ST APPELLANT

SIMON NJUGI KAHINGA.........................................................2ND APPELLANT

JOSEPH NGATU IKURA.........................................................3RD APPELLANT

VERSUS

FRANCIS MWANGI GATHITU.............................................1ST RESPONDENT

CHRISTOPHER GITHINJI..................................................2ND RESPONDENT

GAICHUHIE NGARI.............................................................3RD RESPONDENT

MATHEW MUTISO..............................................................4TH RESPONDENT

JOSEPH MACHARIA.........................................................5TH RESPONDENT

ATTORNEY GENERAL.......................................................6TH RESPONDENT

(Being an appeal against judgment and decree in Mukurweini Senior Resident

Magistrates’ Court Civil Case No. 22 of 2011 (Hon. W. Kagendo)

delivered on 28th February, 2013)

JUDGMENT

The first three respondents sued the appellants together with two police officers, the 4th and 5th respondents respectively, and the Attorney General in the magistrates’ court for general damages for false imprisonment and malicious prosecution. They also sought for damages for loss of what they described as “loss of expected earnings”.

The suit against the appellants arose out of the prosecution of the three respondents in Mukurweini Senior Resident Magistrates’ Court Criminal Case No. 59 of 2010 in which they had been charged with the offence of stealing contrary to section 275 of the Penal Code and in the alternative, failing to prevent a felony contrary to section 392 of the Penal Code.

It was the respondents’ case in the suit that the appellants jointly and severally caused them to be falsely imprisoned and maliciously instituted the criminal proceedings against them. In the process, they also lost their jobs with the 1st appellant; as at the time of filing their suit in the magistrates’ court they had not found alternative employment elsewhere because according to them, their reputation had been soiled.

The appellants denied the respondent’s claim and filed a statement of defence in that regard. In particular, they contended that they did not instigate the respondents’ arrest and trial but they participated in that trial only as state witnesses.

The learned magistrate upheld the respondent’s claim and awarded each one of them the sum of Kshs 250,000/= plus costs and interest; the judgement was against the appellants and the rest of the defendants, jointly and severally.

The appellants appealed against the decision of the magistrate and in the memorandum of appeal they raised the following grounds:

1. The learned magistrate erred in law in failing to note that once the appellant paid the respondents their dues which included the month’s salary in lieu of notice no damages for expected earnings accrued under the law;

2. The learned magistrate erred in granting a global sum for the claim in the plaint while the law requires particularization;

3. The learned magistrate erred in law in determining issues for which she did not have jurisdiction;

4. The learned magistrate erred in law and in fact in failing to consider that the appellants neither reported nor mentioned the respondents to the police;

5. The learned magistrate erred in law in giving a judgement against the weight of the evidence; and,

6. The learned trial magistrate erred in law and in fact in making disproportionate awards to the claimant.

Being the first appeal, parties are entitled to a fresh examination of the evidence adduced in the lower court before this Court can come to its own conclusions. This task carries along with it the caution that the lower court saw and heard the witnesses, an advantage which this Court is deficient of; however, it is a disadvantage which ordinarily preclude this court, in exercise of its appellate jurisdiction, from coming to a conclusion different from that of the magistrates’ court if it is apparent from the evidence the latter court should not have reached a particular conclusion. (See Selle and Another versus Associated Motor Boat Company Ltd & Others 1968 EA 123 at 126)

The respondents testified that they were previously employed by Ruarai coffee factory as guards and that they were arrested and charged with the offences of stealing and failing to prevent a felony. They were all acquitted under section 210 of the Criminal Procedure Code because the trial court ruled that no prima facie case had been made out against them. Their complaint against the appellants was that they were not reinstated back to their jobs even after they were acquitted of these offences.

According to them, the criminal case against them was motivated by malice and was only employed to have them sacked. They were also aggrieved that their reputation had been injured as a result of the arrest, the time they spent in police custody and their subsequent trial. They complained that they were arrested without any investigations into allegations against them. For all these grievances, the respondents asked the court to compensate them by way of damages.

The 3rd appellant testified on his own behalf and on behalf of the rest of the appellants. He admitted that the respondents were employees of Ruarai coffee factory until the 24th January, 2010 when they stopped working. According to him the respondents left on their own but even then, all their terminal dues were paid. More relevant to this case, he denied that the appellants initiated the criminal case against the respondents.

In order to appreciate the respondents’ suit against the appellants in the subordinate court, it is necessary to consider the criminal case in which the respondents were prosecuted and in particular the appellant’s role, if any, in their prosecution.

The record of the proceedings in the criminal trial shows that the prosecution case against the respondents was this: on 24th of January, 2011 at about 12:40 AM administration police Constable Matthews Mutiso who was then attached to Gumba administration police post, got information from a person he described as “an informer” that he had seen two men who dropped a sack and fled when they saw the informer. The police constable went and picked the sack and, according to his testimony, it contained coffee beans that weighed about 35 kg. He reported this matter to Gakindu police post and also went to Ruarai coffee factory and informed its manager about this find.

Corporal Joseph Macharia who was in charge of Gakindu police post at the material time, confirmed that he received information from Constable Mutiso about the coffee beans. He accompanied corporal Mutiso to the scene; according to him, the beans were scattered from the scene all the way to Ruarai coffee factory. The managers of this factory told them that they had lost about that 35 kg of coffee. The managers summoned the respondents who were then on night duty the previous night. The police officers arrested them and took them to Mukurweini police station from where the charges against them were preferred.

The learned magistrate, as noted awarded each of the respondents the sum of Kshs 250,000/=; it is not clear from her judgement which of the heads of the respondent’s claim this award was made. Was it an award for false imprisonment, malicious prosecution or for wrongful termination of employment? This is a pertinent question because the learned magistrate herself framed the issues for determination as, whether the plaintiff’s employment with the defendants was wrongly terminated; whether the prosecution was malicious; and whether the respondents were on duty at Ruarai coffee factory at the material date. Of these issues, she concluded that the most crucial one was that of termination, apparently of the respondents’ employment. If she concluded, as she indeed did, that the respondents were maliciously prosecuted and that they were also wrongfully dismissed from their employment, then it was incumbent upon the her to specify not only how much of this award was made up of damages for malicious prosecution and for unlawful dismissal but it was also necessary for her to state the basis of the award or awards made; it was not open the learned magistrate to pluck out of the blue and award it as the damages payable to the respondents without any sort of rationalization. I agree with counsel for the appellants that this sort of a global award is, with due respect to the learned magistrate, an ambiguous one and therefore unsustainable.

But even if one was to assume that the award made comprised wholly or in part damages for malicious prosecution, it is apparent that the learned magistrate did not interrogate the question whether the respondents made out a case for malicious prosecution before making award; I say so because there is nothing in the learned magistrates’ judgment that suggests she considered the necessary ingredients of the tort of malicious prosecution.

This tort arises out of an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge see Mohamed Amin v Jogendra Kumar Bannerjee [1947] AC 322 at 330, PC, per Sir John Beaumont. It is actionable if it can be proved that the trial process was without reasonable and probable cause; that it must have been instituted or carried on maliciously; and that it terminated in the claimant's favour. The claimant must also prove that he suffered damage. (See Martin v Watson[1996] AC 74 at 80, [1995] 3 All ER 559 at 562, HL, per Lord Keith of Kinkel). It follows therefore that to succeed in a claim for damages for malicious prosecution, the claimant must prove the following:

1. The prosecution by the defendant of a criminal charge against the claimant before a tribunal or a court of competent jurisdiction;

2. The proceedings complained of terminated in the claimant's favour;

3. The defendant instigated or carried on the proceedings maliciously;

4. The proceedings were instituted and carried on without any reasonable and probable cause for the proceedings; and finally,

5. The claimant has suffered damage.

It is not in dispute that the respondents were charged and tried of a criminal offence before a court of competent jurisdiction. It is also not in dispute that proceedings ended in the respondents’ favour. The bone of contention which the learned magistrate appears not to have given due regard is the last three elements; that is, whether the appellants set in motion the proceedings and if they did, whether they were malice-driven; closely related to that is whether the appellants pursued the respondents’ trial without any reasonable or probable cause. Lastly, whether the respondents established that they suffered any damage.

I suppose that the court would only move to consider the last two elements if the answer to the third element is in the affirmative; if on assessment of the evidence it comes out clearly that neither of the appellants provoked or pursued the prosecution of the appellants, it certainly would not matter, for purposes of the incidence of liability, whether the respondents’ prosecution was undertaken without any reasonable or probable cause or that the respondents suffered any damage. It would, in my view, be a moot question if the respondents’ suit was vitiated by a misjoinder or non-joinder.

Coming back to the question of prosecution, it has been held that a prosecution exists when a criminal charge is made before a judicial officer or tribunal (see Rayson v South London Tranways Co [1893] 2 QB 304 and Austin v Dowling (1870) LR 5 CP 534 at 540 per Willes J). A person who makes or is actively instrumental in the making or prosecuting of the charge is deemed to prosecute it and is called the prosecutor. This definition extends to any person who represents himself as prosecutor, even if he did not in fact initiate the prosecution, and is present only as a witness (see Clements v Ohrly (1848) 2 Car & Kir 686).

However, the mere fact that a witness is bound over with another (the real prosecutor) to prosecute and give evidence will not render the witness liable to a claim in respect of the prosecution (see Eagar v Dyott (1831) 5 C & P 4)

Similarly, a person who fairly states the facts to a magistrate, and makes no specific charge against anyone, will not be responsible, in a claim for malicious prosecution. (Leigh v Webb (1800) 3 Esp 165).

But a person who provides information to the police in such a way as to be actively instrumental in the making or prosecuting of a criminal charge may be liable for malicious prosecution even if he is not technically the prosecutor (see Martin v Watson [1996] AC 74).

If the respondents suit is looked at from the foregoing perspective, it is difficult to find anything on record that suggests that the appellants were responsible for the institution or subsequent prosecution of the criminal case against the respondents. The case against them was initiated, not by the appellants but by the police; as matter of fact, it is the administration police officers who took it upon themselves to report the alleged theft of coffee to the regular police who in turn arrested and charged the respondents. While acquitting the appellants, the trial magistrate aptly captured the sequence of events leading to the arrest and prosecution of the respondents as follows:

“In his own evidence, corporal Macharia (PW5) stated that he went to the scene with APC Mutiso and they followed spilt coffee parchment that led them to Ruarai coffee factory. At no point did APC Mutiso state this.

“In fact when he was cross-examined by the 2nd accused, he stated that he had found the coffee at night and kept it to confirm which factory it was from, which he learnt when he went there and spoke to the manager(PW1). This is one strange case where police discovered an exhibit suspected to be stolen, and then took it upon themselves to find the complainant!

“Ordinarily, police should only act on complaints made to them, or on offences committed before them. Ruarai coffee factory had not reported any theft, and it is not clear what APC Mutiso and corporal Macharia were investigating. A person who actually witnesses an incident cannot be an informer, as APC Mutiso wanted the court to believe. This is a witness and ought to be treated as such, as there was no other way of proving the incident without the direct evidence of the witness. There was something fishy about this so-called informer and his interaction with APC Mutiso.”

This passage suggests that none of the appellants had anything to do with the arrest and prosecution of the respondents. The shadowy figure who seems to have been instrumental in the arrest and ultimate prosecution of the respondents was the so-called informer but whom the court held that he was in fact a witness who ought to have been called to testify. Equally important, the court established that there was no complaint but rather the police took it upon themselves to investigate a non-existent complaint.

Besides what the learned magistrate thought of the police, I have also not seen anything from the testimony of the appellants suggesting that they suspected the respondents to have stolen coffee from their factory; none of them lay any sort of blame to any of the respondents that would have instigated their arrest and prosecution.

In the absence of proof that the appellants were actively instrumental in the making or prosecuting of the charge against the respondents and all they did was only to fairly state the facts to the magistrate without making any specific charge against any of the respondents I cannot see how the appellants were responsible for the claim against them. In a nutshell, the claim of malicious prosecution against the appellants was not proved on a balance of probabilities. I would allow their appeal with costs. I would also overturn the judgment against them in the magistrates’ court. They will have costs of the suit.

Dated, signed and delivered in open court this 13th day of January, 2017

Ngaah Jairus

JUDGE