[2017] KEHC 2653 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CIVIL APPEAL NO. 94 OF 2013

SIMON MATU NJAGI………………..……………..………….APPELLANT

-VERSUS-

HUTCHSON KIMARU alias HUDSON GATHERU…....1ST RESPONDENT

JOSEPH MBOGO NJEGA……………………………...2ND RESPONDENT

ATTORNEY GENERAL……….……………………..….3RD RESPONDENT

(An appeal from the decision of the Senior Resident Magistrate’s

Court (J. N. Onyiego) at Kerugoya, Civil Case No. 168 of 2004

Delivered on 17th January, 2008)

JUDGMENT

1. The plaintiff SIMON MATU NJAGI who is the appellant herein filed a suit against the defendants Hutchson Kimaru alias Hudson Gatheru, Joseph Mbogo Njegaandthe Attorney General at the Senior Resident Magistrate’s Court Kerugoya Civil Case No. 168 of 2004 claiming:

(a) General Damages for unlawful and wrongful imprisonment and for malicious prosecution.

(b) General damages and aggravated damages for defamation.

(c) Costs of the suit.

(d) Any other relief the court may deem fit.

Brief facts of the case are that the Appellant was arrested by Police on 3rd May, 2003 and confined at Wanguru Police Station. This followed a report made by 1st and 2nd respondent. He was arraigned in Court vide Criminal Case No. 854 of 2003 Wanguru Court. He was charged with stealing contrary to Section 275 of the Penal Code and Handling Contrary to Section 322 of the Penal Code. At the conclusion of the criminal trial the appellant was acquitted under Section 215 of the Criminal Procedure Code. He then filed the Civil suit claiming damages as above.

2. The defendants entered appearance and filed their respective defence(s). The pleadings closed and the matter proceeded to trial. After a full trial the suit was dismissed with costs.

3. The Plaintiff was dissatisfied with the judgment and filed this appeal based on the following grounds:

(i) That the learned magistrate erred in law and fact in making judgment against the weight of evidence.

(ii) That the learned magistrate erred in law and fact in disregarding the fact the appellant had proved his case on a balance of probability.

(iii) That the learned magistrate erred in fact and law by taking into account extraneous matters that had not been placed before him for consideration.

(iv) That the learned magistrate erred in law and fact in disregarding the fact that the 3rd respondent did not adduce any evidence to rebut the evidence tendered by the appellant.

(v) That the learned magistrate erred in law and fact in inputting criminal conduct on the part of the appellant despite that the appellant had been cleared by a court of competent jurisdiction having been acquitted of the charges of stealing and handling stolen property.

(vi) That the learned magistrate erred in law and fact in not finding that the appellant arrest charging and prosecution was malicious in the fact of the clear evidence adduced before the court.

4. The Appellant filed supplementary record of appeal dated 10th May, 2016. The Appellant is represented by Magee Wa Magee & Company Advocates. Directions were given that parties proceed by way of written submissions. The 1st and 2nd respondents were represented by Njeru Nyaga & Company advocates.

5. I have considered the grounds of appeal and the submissions. The Appellant is dissatisfied of the lower court which found that the 1st respondent first made a report to the Police on the loss of his stolen property. That it was the duty of the Police to investigate and if they found the Appellant responsible, then it was them who preferred charges. The trial magistrate further found that the 2nd respondent only accompanied the 1st respondent to make a report at the Police Station. Therefore the Appellant failed to prove his case on a balance of probabilities against the 1st and 2nd respondents and dismissed the case against them.

6. With regard to the 3rd respondent, the trial court held that they arrested the Appellant after receiving the theft report and recovered the basin in his shop. The trial magistrate dismissed the claim against the 3rd respondent. The Appellant was claiming damages for unlawful imprisonment, malicious prosecution and defamation. The contention by the Appellant is that the 1st and 2nd respondent made untrue and baseless allegations against him in order to make him arrested and prosecuted. That the 3rd respondent failed to ascertain the truthfulness of the complaint in order to make a reasonable arrest and charge thereof. Failure to do so led them to charge him without any reasonable ground. That he was subsequently acquitted.

7. The 1st and 2nd respondent contend that they made the complaint in good faith and from reliable information of one of his workers Samuel Njuki Mwaniki who confirmed to have stolen the basin and sold it to the Appellant in whose possession the basin was recovered.

8. The issue for determination is whether the appeal has merits. In a claim for malicious prosecution the Appellant is required to plead the particulars of malice. He must also prove that he was prosecuted and that the prosecution was instigated by 1st and 2nd respondent. That the prosecution was tainted with malice. That the prosecution terminated in favour of the appellant. The Appellant at page 7 of the plaint had pleaded the particulars of the 3rd defendant’s malice as follows:

“(a) Arresting and charging the plaintiff on the basis of the 1st defendant’s complaint which a reasonable and diligent police officer could not have ………in the circumstances.

(b) Failing to investigate and ascertain the truthfulness of the complaint in order to make a reasonable arrest and charge thereof.

(c) Unconscionably charging the plaintiff under section 275 and 322 of the penal code without reasonable cause or ground.

(d) preferring the said charges while knowing that the allegations against the plaintiff were based on malice, illwill and spite.”

No particulars of malice were pleaded against the 1st and 2nd respondents. No malice was attributed to the 1st and 2nd respondent by the appellant. The Appellant in his testimony in Court stated that the 1st and 2nd respondent made a malicious report. As submitted there was no evidence that 1st and 2nd respondent acted maliciously when making the report of the lost toilet basin. The trial magistrate was right to find that no malice was proved. I am of the view that the Appellant cannot fault the trial magistrate on his finding\ as the Appellant had not specifically pleaded the particulars of malice nor did he adduce evidence to prove it. The Court considers the pleading and the evidence when arriving at its decision. Where these are lacking the Court will find no merits in the claim.

9. The trial magistrate found that the facts were not in dispute as the Appellant had received the basin and it was recovered from his shop. He also found that the 1st respondent had reported the loss to the Police. The trial magistrate found that since the 1st respondent had lost his property from his house and made a report to the Police as required under the law the report was not malicious.

10. The particulars of malice pleaded are just a narrative of what the respondents did. What the respondents did was reasonable based on the circumstances of this case. The 1st respondent had a genuine report to make to the Police as his property was stolen. Police took action and investigated as required under the law. The Appellant was prosecuted. From the proceedings at page 41 the Appellant was put on his defence after court found that he had a case to answer on the charge of handling stolen property. He gave a defence admitting that somebody went to his shop and wanted to sell to him a toilet. He took the toilet and kept it in his shop. Police went and recovered the toilet and arrested the Appellant.

11. The 1st respondent acted reasonably. All what a member of public who discovers that his property is stolen does, is to report to the Police. The matter is then investigated by the Police. 2nd respondent accompanied the 1st respondent. There is no evidence that the 2nd respondent ever reported to the Police. I am of the view that the action by the 1st respondent was not malicious. The Police acted reasonably once they received the report and upon investigations recovered the reported stolen property. The fact that the Appellant was found by a competent court to have a case to answer is proof that the Police had acted reasonably in the circumstances. The trial magistrate was right to conclude that the action by 1st and 2nd respondents was not actuated by malice. They gave evidence in the criminal case. Though the prosecution terminated in favour of the Appellant, he had the legal burden to prove that the prosecution was actuated by malice. All the three ingredients, that is prosecution and malice and the termination of the prosecution in his favour must be proved. In the case of Gitau -V- East African Power and Lighting Company Limited in was held:

“In a claim alleging malice the facts constituting malice ought to be particularized as per Order -V- rule 8(1) Civil Procedure rules. In order for a claim of malicious prosecution to succeed, the plaintiff must not only show that he was prosecuted but that he was prosecuted upon the instigation of the defendant and that there existed malice and which malice he must prove. In this instant the plaintiff failed to prove malice.”

What is clear from the circumstances of this case is that the 1st respondent exercised his constitutional right to report the loss of his property and had no control over what action Police took. There was nothing else that was pleaded. There was no ill motive and there were no prior grudges. There was nothing to pin point any presence of malice. The 1st respondent had reasonable cause to report to the Police. In Muranga -V- Attorney General (1976-80) 1 KLR 1251 it was held:

“In proceedings for malicious prosecution, the plaintiff must show:-

(1) That a prosecution was instituted by the defendant or by someone for whose acts he is responsible.

(2) That the prosecution terminated in the plaintiff’s favour.

(3) That the prosecution was instituted without reasonable or probable cause.

(4) That it was actuated by malice.

The test whether the prosecution was instituted without reasonable and probable cause is whether the material known to the prosecutor would have satisfied a prudent and cautious man that the plaintiff was probably guilty of the offence.”

It is not enough for the Appellant to state that he was maliciously prosecuted. He must prove malice and that there was no probable and reasonable cause. The arrest, recovery of the stolen property from the Appellant coupled with the fact that the Appellant was put on his defence in the criminal trial leads to the conclusion that the respondent had reasonable and probable cause.

12. The Appellant is alleging that there was malice as there was no evidence that he had stolen. In the criminal trial, the Appellant stated that the toilet was taken to him in a sack. The person wanted to sell the thing to him. He kept it. Later he discovered what was in the sack was a toilet. He went and reported to the Administration Police but did not take the toilet to the Administration Police. The Appellant is a reasonable and enlightened person. He knew the person who took the basin to him was not a dealer in such items. In any case being a person who operates an angro-vet, he knew that toilets are not sold in sacks. If you are found in possession of a stolen item you are either a thief or a handler. Police charged him with theft and alternative of handling. He was placed on his defence for handling stolen property. Though he had not stolen, there was evidence from 1st respondent that his toilet basin was stolen. The Appellant kept the basin and though he was in charge of security, he did not arrest the boys or hand over the property to the Police. On the face of it the offences charged were disclosed to warrant the Appellant being charged. The minute the Appellant received the basin in the manner he stated, he became a handler. There was nothing wrong with Police charging him. He was acquitted after he demonstrated to Court how he came to possess the toilet.

13. This does not give the Appellant an open cheque for award of damages. What he has alleged is that there was malice. The burden on his part to prove malice did not shift. Malicious prosecution is an intentional tort that requires proof that the respondent’s conduct in setting the criminal process in motion was fuelled by malice. The requirement of proof of malice is the key to striking the balance that the tort was designed to maintain – between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a truancy purpose other than that of carrying the law into effect. In Abubaker Simba

14. -V- Stephen N. Wambari (1994) eKLR the Court of Appeal stated as follows:

“………..the trial judge had correctly stated the essential ingredients to establish the tort of malicious prosecution as follows:

1. That the proceedings were instituted or continued by the defendant (respondent herein).

2. That the defendant (respondent herein) acted without any reasonable and probably cause.

3. That the defendant (respondent herein) acted maliciously.

4. That the proceedings were terminated in favour of the plaintiff (appellant herein)…….

The learned judge, in our view, was quite correct in finding that the respondent had shown that he had acted with reasonable or probable cause and that his actions were not motivated by any malice.

Justifiable anger or outrage is not malice…….The respondent’s acts in apprehending the appellant when he saw him for the first time after three years and handing him over to the Police were very proper and cannot, by any means, be termed malicious.”

15. On the first ingredient, the 1st and 2nd respondent stated that all they did was to report. They did not order or authorize arrest. It is the 3rd respondent acting on the report, who went to the Appellant shop, recovered the item and arrested him. This is what the Police are required to do if there is a reasonable and probable cause which in the circumstances of this case they had. In James Karuga Kiiru -V- Joseph Mwamburi & 2 others (2001) eKLR the Court of Appeal held:-

“To prosecute a person is not prima facie tortious, but to do so dishonestly or unreasonably is malicious prosecution, thus differs from wrongful arrest and detention in that the onus of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted.”

16. So as a matter of fact if reasonable and probable cause existed at the time the prosecutor commenced or continued criminal proceedings in question, the proceedings must be taken to have been properly instituted. I have stated above that there was reasonable and probable cause. In Stephen Gachau Githaiga & another -V- Attorney General (2015) eKLR it was stated:-

“The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must at impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. The mere fact that the version of one of the parties is not considered does not make the subsequent prosecution malicious. However, where the police deliberately decide not take into account the version of the suspect and acts on a story that eventually turn out to be improbable and which no ordinary prudent and cautious man would have relied upon that failure may constitute lack of reasonable and probable cause for the purposes of malicious prosecution. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for a prosecution. Circumstances may exist in which it is right before charging a man with misconduct to ask for an explanation but no general rule can be laid down.”

I am persuaded by this holding. The prosecutor in this case had a person who was found with a stolen item. There was a report made and acted upon. There was probable cause to commence criminal proceedings. The prosecutor did not have to consider the defence.

17. Though the proceedings terminated in Appellant’s favour all the four ingredients stated by the Supreme Court in the case of Abubaker Simba, (supra) must be present.

18. The Appellant submits that the 3rd respondent did not adduce any evidence and the evidence against him is uncontroverted. I am of the view that the Appellant had to discharge the evidential burden so as to shift the burden. In a case like this where there is no proof, failure to adduce evidence by the adverse party is of no consequence. The trial court gave a correct finding based on the evidence before him.

19. As stated above, there was reasonable and probable cause to prosecute the Appellant. The Appellant claimed that he was defamed. From the record of the trial court, the appellant did not call any witness to prove the allegations of defamation. The allegation arises from the evidence which 1st and 2nd respondent gave in Court and the prosecution by the 3rd respondent. Such cannot form a basis for suing 1st and 2nd respondent for defamation.

“The communication is priviledged. Under Section 198 (1) (e) and (2) of the Penal Code it is provided:

“The publication of defamatory matter is absolutely priviledged and no person shall under any circumstances be liable to punishment under this code in respect thereof in any of the following cases namely:

(e)If the matter is published in the course of any Judicial proceedings by a person taking part therein as a judge, magistrate, commissioner, advocate, assessor, witness or party thereto.”

“(2) Where the publication is absolutely priviledged, it is immaterial for the purpose of this Chapter whether the matter be true or false and whether it be or not be known or delivered to be false and whether it be or not published in good faith.”

The evidence given by 1st and 2nd respondent was absolutely priviledged and they cannot be sued based on that evidence. In any case, as I have pointed out above, there is no dispute that the appellant had the toilet basin in his shop. He admitted it. Charges of theft and handling stolen property were preferred. I am of the view that the Appellant did not prove that the 1st and 2nd respondents defamed him.

20. The Appellant submits that the trial magistrate erred by not assessing damages. It is true the trial magistrate did not assess the damages. I would have referred the matter back to the trial magistrate to assess damages if the appeal was successful. Since the Appellant has the right to appeal further, I will assess the damages which I would consider reasonable if the appeal succeeded. I would have awarded Ksh.200,000/= for unlawful detention and malicious prosecution. I would award a sum of Ksh.450,000/= general damages for defamation.

21. I am however, of the considered view that the arrest and prosecution of the Appellant was based on reasonable and probable cause and the allegation of defamation was not proved. In the circumstances this appeal lacks merits and is dismissed with costs to the 1st and 2nd respondents.

Dated and delivered at Kerugoya this 9th day of October, 2016.

L. W. GITARI

JUDGE

Read out in open court. Mr. Abubakar for the Appellant, court assistant Naomi Murage this 9th day of October, 2017.

L. W. GITARI

JUDGE

9. 10. 2017