[2022] KEHC 12503 (KLR)

Seka v Majimbo & another (Civil Appeal 24 of 2020) [2022] KEHC 12503 (KLR) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12503 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 24 of 2020

WM Musyoka, J

July 8, 2022

Between

Rasto Seka

Appellant

and

Peter Majimbo

1st Respondent

Attorney General

2nd Respondent

(Being an appeal from the judgment of Hon. G. Ollimo, Resident Magistrate, delivered on 16 th April 2020, in Butere SPMCCC No. 61 of 2019)

Judgment

1. The suit before the trial court was by the appellant against the respondents, for compensation, for malicious prosecution, allegedly arising from a report that the 1st respondent had made to the police, which cause his prosecution in Butere SRMCCRC No. 223 of 2018. The appellants resisted the suit by filing a defence, in which they denied liability. A trial was conducted, and the suit was dismissed, on grounds that the appellant had not established a case on balance of probability.

2. The appellant was aggrieved, hence the appeal. He avers that the evidence he tendered at the trial was uncontroverted, the reasons given in the judgment were contradictory to the evidence tendered, a case on a balance of probability had been established, the trial court failed to appreciate that the burden on him was to establish a malicious arrest and a malicious prosecution and that he had discharged that burden, and failing to assess the award that the trial court could have made had he been successful.

3. Directions were taken on July 28, 2020, for canvassing of the appeal by way of written submissions.

4. In his written submissions, the appellant has identified three issues: whether the prosecution was instituted by the respondents or by someone for whose acts he was responsible, whether the prosecution terminated in favour of the appellant and whether the prosecution was instated without reasonable or probable cause and was actuated by malice. He submits that there was no probable cause and the prosecution was therefore malicious. He says that he should have been awarded Kshs. 1, 000, 000. 00. He has cited a host judicial decisions to support his case. On his part the 2nd respondent has flagged more or less similar issues. He identifies the predominant issue to be whether the appellant established before the trial court that he had been maliciously prosecuted by the respondents. He has identified three sub-issues: whether the prosecution was instituted without reasonable or probable cause, whether it was actuated by malice, and whether the appellant is entitled to damages.

5. The appellant is recorded as having told the court, on February 27, 2020:“I am Rasto Seka Namiba Id No. xxxx. I am a peasant farmer I reside in Emuhonyi village in Lubola Sub-Location. I recognize Peter Majimbo. I recall June 3, 2019. I did record my statement. I wish to have it adopted as evidence in chief. In the said statement. I recorded that plaintiff alleged I had maliciously damaged his crops and hereupon I was arrested on April 18, 2018but was released by police. They later returned in 28. 4.2018 but they didn’t find me. I proceeded to police station out of my own volition and hereupon I was arrested and placed in the cells. I was arraigned in court. On 30. 4.2018 and charged in Cr. 223/2018. Matter was concluded whereupon I was acquitted. I have the charge sheet and witness statement with respect to the said charge. I wish to produce them as exhibit. I was charged with offence of malicious damage of Defendant’s maize. I wish to produce proceedings in receipt of CR. C 223/2018. I further wish to produce Judgment in the said case. That case was heard and determined in Butere law courts. I pray that defendant be compelled to compensate me for the emotional torture of arrest and being confined in cells. Peter Majimbo (1st defendant) is the one who lodged the report at police station. I was arrested by officers from Butere Police Station. They never investigated the case. I further pray for costs of this suit.”

6. The witness statement by the appellant is a one-page document, which I reproduce herebelow verbatim.“I, Rasto Seka, of P.O Box 50-xxxx Butere, hereby state as follows: That I am adult of sound mind and the plaintiff herein and hence competent to make this statement.

That I stay at Emukhwanyi village and am a small scale farmer.

That on or about 1April 8, 2018I was accused of maliciously damaging the property of Peter Majimbo valued at Kshs. 610/= contrary to section 339 of the Penal code.

That the complainant therein is my neighbour and I was oblivious that my neighbour thought that I committed the act as we occasionally quarrel.

That my neighbour made a complaint at Butere Police Station and I was arrested detained and subsequently arraigned in court to take plea where I pleaded not guilty.

That it caused me distress to come to court to defend the allegations brought against me.

That vide the judgement delivered and dated December 7, 2018, I was acquitted under section 215 of theCriminal Procedure Code.

That I suffered mental anguish and torment and has tarnished my name in the position of the public in general and in particular the right thinking members of society who are also my neighbours and friends whom I closely relate with on a day to day basis.”

7. The case was founded on the tort of malicious prosecution. There is ample case law, stated in such cases as Egbema v West Nile District Administration [1972] EA 60 (Sir William Duffus P, Law Ag VP & Lutta JA), Kagane and others v Attorney-General and another[1969] EA 643 (Rudd J), Murunga v Republic [1976-80] 1 KLR 1251 (Cotran J), Katerregga v Attorney General [1973) EA 287 (Mead J), among others, that the ingredients for the tort of malicious prosecution, which the plaintiff needs to prove, are: the prosecution was initiated by the defendants, it terminated in favour of the plaintiff, it was initiated without reasonable and probable cause and it was instituted with malice.

8. From the material before me, it is not contested that there was prosecution that was initiated by the respondents. The first responded made a report to the police, who took up the matter, had the appellant arrested, taken to court and prosecuted. It is also not contested that the prosecution terminated in favour of the appellant. At the end of the criminal proceedings, the appellant was acquitted. It is the last two elements that are contested. That is as to whether the prosecution was instituted without reasonable and probable cause, and whether it was actuated by malice.

9. It was in Kagane and others v Attorney-General and another [1969] EA 643 (Rudd J) and Murunga v Republic [1976-80] 1 KLR 1251 (Cotran J) that the courts defined or described what reasonable and probable cause are about. It was said that it is about the guilt of the accused person being based on reasonable grounds, and that there would be absence of reasonable and probable cause where a reasonable and cautious person would not have bene satisfied that there was a proper case to be put before the criminal court. The person alleging malicious prosecution must place some material before the civil court to demonstrate that the case that the defendants had placed before the criminal court did not have any reasonable or probable cause, and that it was on that account that the prosecution failed. An acquittal by itself is not adequate proof of lack of a reasonable and probable cause. The plaintiff must go beyond the acquittal, and present material designed to explain why the prosecution terminated with his acquittal. The mere fact that the prosecution failed will not do, without more.

10. The tort is founded on malice. There ought to be some attempt to demonstrate that the prosecution was malicious, in the sense of being driven by a malicious motive or intent, quite apart from pursuit of justice. The standard meaning of malice is spite, invective, ill-will, wrongful motive, wickedness, among others. It may also be said to be an intent to commit a wrongful act, or to act with reckless disregard of the law or the legal rights of another. Malicious prosecution is defined as the institution of proceedings against a person for an improper purpose, or from wrongful and improper motives. See Black’s Law Dictionary, Tenth Edition, Thomas Reuters, 2009, 1101, and 1102 and Nzoia Sugar Company Limited v Fungututi (1988) KLR 399 (patt, Apoloo JJA & Masime Ag JA).

11. In both the witness statement and the oral testimony in court, the appellant made no effort to demonstrate that the criminal prosecution was malicious, in terms of it being driven by spite or ill-will or some other wrongful or improper motive, or that it was designed to serve some improper or wrongful purpose. Similarly, he made no attempt to demonstrate that the criminal prosecution did not have any probable or reasonable cause. He was content to merely present evidence of a criminal prosecution that terminated in his favour. That was not adequate. He needed to do more. It should be made clear, that the burden of proof of malice and of lack of probable and reasonable cause lies with the plaintiff. The burden shifts to the defendants only after the plaintiff has presented some evidence of malice and of lack of probable or reasonable cause. In the instant case, the appellant did not discharge that burden, and did not establish any case against the respondents to warrant any orders being in his favour. The trial court came to the correct conclusion that the appellant failed to establish his case to the required standard.

12. The appellant talked about compensation for being confirmed in police cells and also of malicious or wrongful arrest. The case before the trial court, as set out in the plaint, was for malicious prosecution. It had nothing to do with unlawful or wrongful arrest, or false imprisonment, and the trial court was not obliged to deal with issues that were not pleaded. There was also the ground that the trial court did not assess the damages it would have awarded had it found in favour of the appellant. I agree, the practice is that the trial court ought to make that assessment, even where it goes on to dismiss the suit. However, the omission to do that is not sufficient to overturn an otherwise correct outcome.

13. Consequently, I find that the appeal has no merit and I hereby dismiss the same with costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 8THDAY OFJULY, 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Atulo, instructed by ZJ Atulo & Company, Advocates for the appellant.Ms. Kubo, instructed by the Attorney General, for the respondents.