[2022] KEHC 14821 (KLR)

Tenkee & 2 others v Attorney General & 2 others (Civil Appeal 10 of 2021) [2022] KEHC 14821 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14821 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Civil Appeal 10 of 2021

F Gikonyo, J

November 3, 2022

Between

Philip Tenkee

1st Appellant

Edward Tenkee

2nd Appellant

Anthony Tenkee

3rd Appellant

and

The Attorney General

1st Respondent

Eric Lee Seitai

2nd Respondent

Douglas Lelimoo Mesi

3rd Respondent

(Being an appeal from the judgment and decree of Hon. D.K.Matutu (S.R.M) delivered on 29thAugust 2017 in Kilgoris SPMCC NO. 16 of 2016)

Judgment

Malicious prosecution 1. The appellants vide plaint dated February 5, 2016 sued the respondents claiming; general damages for unlawful arrest, detention and malicious prosecution, special damages of Kshs 150,000/= being their advocates legal fees for their defence in Kilgoris criminal case no. 731 of 2012 in which they were acquitted under Section 210 of CPC of the offence of creating disturbance contrary to section 95(1) of the Penal Code.

2. The matter was heard to its logical conclusion. The trial court dismissed the appellants’ case with an order that each party shall bear its own costs.

3. The appellants in their memorandum of appeal dated September 22, 2017 raised 8 grounds of appeal;i.That the learned trial magistrate erred in law and fact that the appellants’ case and evidence in the lower court was basically uncontroverted.ii.The learned trial magistrate erred in law and fact in failing to consider entirely the appellants’ evidence in his judgment.iii.The trial magistrate failed to properly and /or evaluate the entire evidence on record thus reached a wrong decision.iv.The trial magistrate erred in law and fact when he decided the case before him on the basis of presumptions and not evidence adduced in court and on record.v.The learned trial magistrate erred in law and fact by failing to recognize and appreciate the fact that the appellants had proved their case on a balance of probabilityvi.The learned trial magistrate erred in law and fact by dismissing the appellants merited suit based on trivial reasons.vii.Had he considered and properly evaluated the appellants’’ evidence on record together with relevant points for proof of the case set out in the authority cited the learned trial magistrate would have not dismissed the lower court case on trivial reason that the ‘ingredients did not unite’.viii.The learned trial magistrate’s findings in the judgment are clearly against the weight of evidence advanced by the appellants’ and this constitutes a miscarriage of justice.

Directions of the court. 4. The appeal was canvassed by way of written submissions. The appellants and the 1st respondent complied while the 1st and 2nd respondents did not file any written submissions.

Appellants’ submissions 5. The appellants submitted that the trial magistrate erred in law and fact by holding that there was no malice in prosecution of the appellants. They argued that PW4 (Area chief) arrived and noted that there was no much tension but the 2nd and 3rd respondents maliciously reported to the police that the appellants had committed the offence. The police arrested and maliciously charged the appellants in court.

6. The appellants submitted that the trial magistrate erred in failing to find that the police conducted shoddy investigations and that it was PW2 who was armed with a panga and was the aggressor.

7. The appellants submitted that they met the threshold for establishing a claim for malicious prosecution in the lower court.

8. The appellants submitted that the trial magistrate failed to properly evaluate the appellants evidence together with their exhibits.

9. The appellants urged this court to allow this appeal and proceed to set aside and /quash the trial magistrate’s judgments and decree dated August 29, 2017.

10. The appellants have relied on the case of Nyamira High Court Civil Appeal No. 20 of 2020; Risper Nyomenda Vs George Martin Kenyatta.

1stRespondent’s submissions. 11. The 1st respondent submitted that the police did not move on their own motion to arrest the plaintiff appellants as they were only discharging their mandate as per law. That the appellants were arrested and charged on the basis of a report made to the police by the 2nd and 3rd respondents.

12. The 1st respondent submitted that there was reasonable and probable cause that led to the making of report and filing of the criminal case. That PW3 a village elder stated that the appellants were armed with a panga and forcefully cut the fence. He was scared and informed them but did not heed to his plea to calm down. That the chief confirmed there was a dispute.

13. The 1st respondent submitted that the element that the prosecution was actuated by malice was not substantiated and proved in evidence by the 1st Respondents and no evidence was led by the appellants to show any malice on the part of the police station.

14. The 1st respondent submitted that the police had no reason to maliciously arrest, detain and charge the appellants; evidence of enmity spite and/ or ill will was not adduced by the appellants thus the claim for malicious prosecution cannot stand.

15. The 1st respondent submitted that in absence of the two elements the appellants’ claim has fallen short of the required threshold for a case of malicious prosecution.

16. The 1st respondent submitted that the trial court had no evidence and /or basis upon which it could grant damages on a prayer for malicious prosecution. The appellants did not prove and / or establish or lay any material before court that would entitle them to an award of general damages in the circumstances of this case.

17. The 1st respondent submitted that the trial court was right in dismissing the appellants analyzed all the issues as presented and framed by the appellant.

18. In the end, the 1st respondent submitted that the appeal lacks merit and pray that it be dismissed with costs.

19. The 1st respondent has relied on the following authorities;i.James Karuga Kiiru V Joseph Mwamburi & 2 Other [2001] eKLR.ii.Nzoia Sugar Company Ltd vs Funguti [1988] KLR 399. iii.Maurice Owino Onyango V Music Copyright Society of Kenya.

Analysis and Determination Duty of court 20. Under Section 78(2) of the Civil Procedure Act, the appellate court shall have the same powers and shall perform nearly the same duties as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted herein.

21. Accordingly, the first Appellate Court should re-evaluate the evidence and make its own conclusions albeit it must bear in mind that it did not have the opportunity of seeing or hearing the witnesses first hand. See the case of Selle & Anor –Vs- Associate Motor Boat Co. Ltd 1968 EA 123.

22. Having looked at the proceedings and judgment of the trial Court, the grounds of appeal, the rival submissions and authorities cited therein. I find that the issues for determination are;i.Whether the essential elements of the tort of malicious prosecution have been proved as required by the law.ii.Whether the appellants are entitled to general and special damages.

The tort of Malicious prosecution 23. The essential elements of malicious prosecution have been stated in the case of George Masinde Murunga v Attorney General [1979] KLR 138 to be that: -“(a)The plaintiff must show that the prosecution was instituted by the defendant, or by someone for whose acts he is responsible.(b)The plaintiff must show that the prosecution terminated in his favour.(c)The plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause.(d)He must also show that the prosecution was actuated by malice.”

Prosecution mounted by 1st respondent 24. The 2nd and 3rd respondents lodged the complaint with the police. The prosecution thereto was instituted by the 1st respondent. But that fact alone is not enough to prove malicious prosecution.

Proceedings terminated in favour of the appellants 25. The criminal proceeding herein terminated in favour of the appellants. Nevertheless, not every prosecution that concludes in favour of the accused person necessarily leads to a successful claim for malicious prosecution. It depends majorly on; i) the absence of a reasonable and probable cause; and ii) the presence of malice in instigating, initiating or continuing the prosecution. These two are inter alia the cornerstone of a successful claim for malicious prosecution.

Of probable or reasonable cause 26. Hawkins J in Hicks v Faulkner,3 defined probable and reasonable cause as "an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead to any ordinarily 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".

27. It is widely accepted that the definition provides the test of probable and reasonable cause in a claim for malicious prosecutions to be that of a prudent and cautious man; hold an honest belief upon reasonable grounds that the prosecution was justified.

28. However, the test does not require the respondent to be satisfied beyond reasonable doubt that the person charged is guilty of the offence in instituting criminal complaint or prosecution.

29. Would the circumstances herein have led a reasonable and cautious person to lodge a complaint, investigate it and prefer criminal charges against the appellants?

30. The appellants were armed with pangas and had already cut the fence of the 2nd and 3rd respondents. The area chief and elder cautioned the appellants to cool down but they refused and continued with their agitation. The 2nd and 3rd respondent therefore made a complaint to the police of these matters and situation.

31. The police also recorded statements from the witnesses.

32. Such complaint and circumstances would lead a reasonable police officer or prosecutor to hold an honest belief that the appellants may have caused a breach of the peace. In fact, the appellants were charged with causing breach of the peace.

33. There was therefore probable and reasonable reason for the 2nd and 3rd respondents to make the complaint to the Kenya Police. Similarly, on the basis of the complaint and statements made by the witness to the police, there was probable and reasonable reason to suspect that the appellants had committed a breach of the peace. These informed the filing of charges in court.

34. The trial Magistrate, thus, correctly came to the conclusion that he found no fault on the part of the police who investigated and prosecuted the respondent as theirs was “reasonable and probable prosecution”.

35. The argument that the respondents acted without probable or reasonable cause in charging the appellants fails.

Of Malice 37. In a case of malicious prosecution, the plaintiff must also prove that the prosecution was actuated by malice. Malice within this context refers to using the criminal process for reason other than bringing the accused to justice. Therefore, mere carelessness in bringing charges against the accused may not be necessarily malice in the sense of the tort of malicious prosecution.

38. The appellants seem to draw malice from long-standing dispute between the Appellants (accused’s) family and the Respondent’s (complainant’s) family. They submitted that, this was evidence of malice and therefore they believe that they had proved the ingredient of “the prosecution was actuated by malice” which is necessary in a claim for malicious prosecution.

39. Although malice may be proved from previously strained relationship, the court should consider it within the entire circumstances of the case. It bears repeating that, the complaint herein was specific and the chief as well as the area elder cautioned the appellants who were armed and had already cut the complainants’ fence to cool down but they refused. The acts of being armed and cutting the fence belonging to the 2nd and 3rd respondents, and refusing to stop the angry or vicious tendencies were quite specific acts which may found a criminal prosecution for breach of the peace. I should add, such acts cannot be justified, the way the appellants are trying to do, by the existence of a long-drawn dispute between the parties.

40. I do not also find any evidence of collusion between the complainants and the police or the DPP to prosecute the appellants as a way of settling the long-drawn dispute between the two families. The trial magistrate made a clear finding that there was no collusion between the complainant and the police who were the prosecutors. See Music Copyright Society of Kenya –vs- Tom Odhiambo Ogowl[2014] eKLR.

41. In the circumstances, I do not find any malice on the part of the respondents.

42. In light of the circumstances of this case- and this has been borne out of evidence- the long-drawn dispute between the parties herein does not in itself prove malice or lac of probable or reasonable cause in the arrest and prosecution of the appellants.

Conclusions and orders 43. In a suit for malicious prosecution, it is necessary that the court should carry out a close examination of the facts of each case and the elements of the offence for which the plaintiff was charged in considering whether an action for malicious prosecution is justified or proved.

44. Similarly, the outcome of the prosecution, the reasons as well as the evidence adduced are also important considerations in ascertaining whether the prosecution was instituted without probable cause, and with malice.

45. In this suit, the acquittal was based on the Courts’ finding of inconsistencies in the testimony of the witnesses. From the findings and the evidence as a whole, the prosecution was instituted with a probable and reasonable cause and without malice. I find not an iota of malice that can be inferred or imputed on the part of the prosecution. As such, the appellants did not prove their case on a balance of probabilities. And, the appellants’ claim fails.

46. Having found that the appellants’ failed to prove their case on a balance of probabilities, I find and hold that the appellants are not entitled to the reliefs sought. The trial court, therefore, properly dismissed their case.

47. In the premises, I find the appeal to lack merit and is dismissed.

48. Given the nature of the appeal, I order each party to bear own costs of the appeal.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 3RD DAY OF NOVEMBER, 2022. .......................F. GIKONYO M.JUDGEIn the presence of:1. Mr. Kasaso – CA2. Bigogo for Appellants3. AG for Respondents - absent