[2017] KEHC 2497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL 128 OF 2011

SAMUEL KARANJA KIARIE…………..........…..………PLAINTIFF

VERSUS

JULIUS KANGU KIMANI………………….............1ST DEFENDANT

THE HONOURABLE ATTORNEY GENERAL........2ND DEFENDANT

JUDGMENT

This is a claim for malicious prosecution. The plaintiff Samuel Karanja Kiarie has filed the claim herein against the Hon. Attorney General claiming damages for malicious prosecution and unlawful detention. He has also sought the costs of the suit.

In his plaint filed in court on the 6th day of April 2011, he has pleaded that on or about the 12th July, 2004, the first defendant made a malicious report at Kenya Anti-corruption Commission which led to his arrest and detention. Following the said report, he was charged in the Chief Magistrate’s court at Nairobi in Acc no 24/20004 with two counts namely;

Count 1 “Soliciting for a benefit contrary to section 39(3) (a) as read with section 48(l) of the Anti- Corruption and Economic Crimes Act, no 3 of 2003.

Count 2” Receiving a benefit contrary to section 39(3) (a) as read with section 48 (l) of the Anti- Corruption and Economic Crimes Act.no 3 of 2003.

He further pleaded that he was subsequently acquitted of the charges in the aforesaid criminal case, on the 27th July, 2009 after the court found that the prosecution had failed to prove the case beyond reasonable doubt. He avers that the 2ndDefendant as the Chief advisor of Government failed to advise the government especially the police officers at KACC who failed to investigate the allegations properly and proceeded to unlawfully detain and prosecute the plaintiff through a protracted trial.

The plaintiff has set out the particulars of malice on the part of the defendants as follows:

a. Making false reports at KACC knowing the same to be false and made with malice for purposes of maligning the plaintiff.

b. The first defendant, giving information to the police knowing the same to be malicious and baseless and without evidence.

c. The 2ndDefendant, charging the plaintiff when there was no evidence of probative value pointing to his guilt.

d. The 2ndRespondent, failure to investigate the allegations made by the first defendant properly and maliciously prosecuting the plaintiff.

e. Causing the plaintiff to suffer disrepute, loss and damage as a result of the defendants malicious actions.

The plaintiff has further pleaded the particulars of loss and damages as follows:

a. The plaintiff’s name has been maligned and tarnished in his right standing in the right minded Kenyans.

b. Loss of income because of suspension from his duties as a chief.

c. Mental anguish and distress.

The first defendant neither filed an appearance nor a defence and there is interlocutory judgment against him.

The 2nd Defendant filed a defence on the 8th day of October, 2011 in which he has denied the plaintiff’s claim. In the alternative and without prejudice, the 2ndDefendant avers that if the plaintiff was arrested and charged, the same was done after a legitimate complaint was made to the KACC and proper investigations done in execution of the police statutory duty.

The particulars of the statutory duties to the police are particularized as follows:

a. To receive and act upon information that an offence cognizable in law has been or is likely to be committed.

b. To cause investigations to be undertaken and pursue every credible evidence upon reasonable cause.

c. To apprehend and detain in custody suspected offenders for the purpose of and incidental to the furtherance of (b) above.

d. To institute and undertake criminal proceedings against any person before any court in respect of offence alleged to have been committed by that person.

When the matter came up for hearing, the plaintiff testified as PW1. It was his evidence that he was the area Chief of Kamukunji from the year 1990 until 2014. On 19/7/2014 he was arrested by police officers from EACC on allegations that he was soliciting money from the first defendant.

He was charged in criminal case number 24/2004 which case went on for 6 years but eventually he was acquitted. That after his arrested and arraignment in court, his services were terminated prematurely when he was remaining with six (6) years to retire. He stated that if his employment had not been terminated, he would have been paid his full benefits.

He denied receiving any bribe and according to him the first Defendant gave evidence knowing very well that he did not receive any bribe. It was his contention that having been acquitted of the charges, he was not guilty and that the police failed to carry out proper investigations in the matter which could have led to the apprehension of the actual culprits. The 2nd Defendant did not attend court on the day of the hearing and the matter proceeded exparte whereas there is interlocutory judgment against the first defendant.

After the close of the plaintiff’s case, the plaintiff filed brief submissions which I have duly considered alongside the evidence on record and the pleadings. I have also taken the liberty to read through the criminal proceedings in Acc no 24/2004.

The law with regard to the tort of malicious prosecution is well settled.

In the case of Mbowa versus East MengoDistrictAdministration (1972) EA 352 wherein the E.Acourt of Appeal expressed itself as follows:

“The action for damages for malicious prosecution is part of the common law of England...The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit. It originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings...It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth. Its essential ingredients are:

(1) the criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests the plaintiff and takes him before a judicial authority;

(2) the defendant must have acted without reasonable or probable cause i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;

(3) the defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some, other than its legally appointed and appropriate purpose; and

(4) the criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge...The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must “unite” in order to create or establish a cause of action.”

In the case of Gitau Vs Attorney General (1990) KLR 13, Trainor J had this to say: -

“To succeed in a claim for malicious prosecution the plaintiff must first establish that the defendant or his agent set the law in motion against him on a criminal charge. Setting the law in motion” in this context has not the meaning frequently attributed to it of having a police officer take action, such as effecting arrest. It means being actively instrumental in causing a person with some judicial authority to take action that involves the plaintiff in a criminal charge against another before a magistrate.

Secondly he who sets the law in motion must have done so without reasonable and probable cause…The responsibility for setting the law in motion rests entirely on the Officer-in-Charge of the police station. If the said officer believed what the witnesses told him then he was justified in acting as he did, and the court is not satisfied that the plaintiff has established that he did not believe them or alternatively, that he proceeded recklessly and indifferently as to whether there were genuine grounds for prosecuting the plaintiff or not.”

What amounts to reasonable and probable cause for the purposes of malicious prosecution was explained by Rudd J in Kagame & Others Vs Attorney General (1969) EA 643 citing Hicks Vs Faulkner [1878] 8 QBD 167 at 171 of 2000, Herniman Vs Smith [1938] AC 305and Glinski Vs Mclver [1962] AC 726 the learned Judge stated: -

“Reasonable and probable cause is 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 lead to 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.”

What constitutes a reasonable and probable cause was also defined in the case of Simba Vs Wambari (1987) KLR 601 as: -

“The plaintiff must prove that the setting of the law in motion by the inspector was without reasonable and probable cause….if the inspector believed what the witnesses told him then he was justified in acting as he did and I am satisfied the plaintiff has not established that he did not believe them or alternatively that he proceeded recklessly and indifferently as to whether there were genuine grounds of prosecuting the plaintiff or not”

In my considered view the following are the issues for determinations;

1. Whether the criminal proceedings were initiated by the defendants?

2. Whether the said prosecution was actuated by malice.

3. Whether there was reasonable cause and/or justification to make the complaint to the police.

4. Whether the criminal proceedings terminated in favour of the plaintiff.

5. Whether the defendants are liable to compensate the Plaintiff and if so what should be the quantum of damages.

6. Who should bear the costs of the suit?

On the first issue, there is no dispute that the criminal proceedings were instituted by the Defendants. The 1stDefendant made a complaint to EACC while the 2ndDefendant investigated and prosecuted the same. However, I hasten to add that the fact that a complaint has been lodged does not justify the institution of criminal prosecution. The enforcement agencies are required to carry out thorough investigations to satisfy themselves that an offence has been committed.

A perusal of the criminal proceedings shows that the defendant was operating a “simu ya jamii” at Shauri Moyo near shopping Centre. He had been given a licence to operate the same by the Nairobi City Council. He had paid the requisite fees to be allowed to operate and the licence was for that particular area. In sum, he had complied with all the requirements by the defunct Nairobi City Council so that he could be given a go ahead to operate.

On the 2nd day of operating the business, he got the chief’s letter dated 2/7/2004 asking him to go to his office. He complied and in the company of a friend, namely Sammy Maina Wanjohi, they went and saw the Chief. They found him with three other people in his office. He was told he had no authority to place the “simu ya Jamii” there as he was not from that area and that he was not born there. He showed the Chief the letter from the defunct Nairobi City Council which the Chief took and locked in the drawer and on asking him why he had locked it, he referred him to a Mr. Odongo who would tell him what to do. It was his further evidence that Mr. Odongo asked him for ksh 3,000 and on asking him what it was for, he was told he needed to pay it to be allowed to have business at Shauri Moyo. He said he did not have money and that he would not remove any, as he had paid for a licece from Nairobi City Council. The Chief refused to give him back the licence and after a long struggle with him he went to the city engineer who had given him the letter to operate the Simu ya Jamii. He referred him to the town clerk who in turn referred him to Nyayo House to the administration or to EACC. He choose to lodge his report with EACC on the 12/7/2014 who investigated the case and they ended up arresting the plaintiff herein.

From the above narrative, was the prosecution actuated by malice and was there a reasonable and probable cause?

The investigating officer in the criminal case testified as PW10. He told the court that following the investigations, he found that there was sufficient evidence for a bribery allegation. He arranged to set a trap where the money was to be handled to Mr. Odongo. The complainant was fitted with an audio recovery device and ksh 2,000 and eventually he gave the money to one Josphant Ogutu Ngare who collected it on behalf of Mr. Odongo whom the plaintiff had referred PW1 to deal with. This evidence was corroborated by that of PW2 who accompanied the first defendant to the plaintiff‘s office to follow up his licence after it was confiscated by the plaintiff, yet he had a license to operate the business. Even the learned Magistrate who heard the criminal case was not fully convinced that there was no solicitation. In her judgment, she observed and I quote

“I find that although there could have been some kind of solicitation….”

In the circumstances of this case, I find and hold that there was a reasonable and probable cause for arresting and prosecuting the plaintiff for the offence he was charged with. It is also not lost on me that the degree of prove in a civil case is on a balance of probability and not beyond reasonable doubt.

On the issue of malice, there is no doubt that the prosecution ended in favour of the plaintiff. He was acquitted under Section 215 of the CPC, but though he was acquitted it does not necessarily connote malice on the part of the defendants. No evidence was tendered by the plaintiff to prove malice on the part of the defendants. Malice however, can either be express or can be gathered from the circumstances surrounding the prosecution. The circumstances surrounding this case cannot lead to inference of malice on the part of the defendants.

After evaluating the evidence on record, I find that the plaintiff was unable to prove his claim. He did not prove that there was malice on the part of the defendants nor did he prove lack of reasonable and probable cause. It is trite law that whoever alleges must prove. The fact that the defendants did not participate during the hearing did not lessen the plaintiff’s burden of prove which is on a balance of probability.

In the upshot, I dismiss the plaintiff’s claim with no orders as to costs.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 6th Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………...………. for the Plaintiff

…....………………. for the 1st Defendant

……………………. for the 2nd Defendant