[2017] KEHC 9667 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT ELDORET

CIVIL APPEAL NO. 51 OF 2007

UKWALA SUPERMARKET LIMITED.....................................................APPELLANT

VERSUS

WILSON MWANGI KING’ORI………………………………………….....1ST RESPONDENT

THE ATTORNEY GENERAL…………………….....................................2ND RESPONDENT

[Being an appeal from the original judgment of B. N. Mosiria, Resident Magistrate, in Eldoret CMCC No. 384 of 2002 delivered on 10th April 2007]

JUDGMENT

1. The appellant is aggrieved by the decree of the lower court dated 10th April 2007. The appellant has lodged a memorandum of appeal dated 4th May 2007.

2. By an amended plaint dated 30th October 2002, the 1st respondent pleaded that the employees of the appellant falsely accused him of stealing two chewing gums from the supermarket. He was subsequentlyarrested by the police; detained for three days; and charged for theft. The 1st respondent was eventually acquitted of the criminal charge.

3. The 1st respondent sought general and aggravated damages against the appellant and the 2nd respondent for wrongful arrest; detention; and, malicious prosecution.

4. By an amended statement of defence dated 13th January 2003, the appellant denied the claim. The appellant conceded that it made a complaint to the police but it denied responsibility for the arrest or prosecution of the 1st respondent. The appellant denied liability for the injuries sustained by the 1st respondent; or, that its actions were motivated by malice.

5. By a separate statement of defence dated 5th April 2005, the 2nd respondent also denied liability. The position of the Attorney General was that the action violated section 13A of the Government Proceedings Act; and, that the arrest and prosecution of the 1st respondent was lawful. Accordingly, there was no foundation for the torts of wrongful confinement or malicious prosecution.

6. The learned trial magistrate found that the appellant and 2nd respondent were liable in the ratio of 70% and 30% respectively. She awarded the 1st respondent damages in the sum of Kshs 200,000. The appellant was to pay Kshs 140,000 while the Attorney General was liable for Kshs 60,000. The 1st respondent was also awarded costs and interest.

7. The memorandum of appeal raises twelve grounds. They can be condensed into five. First, that there was no evidential or legal basis for the judgment. Secondly, the judgment is impugned for internal contradictions: On the one hand, it states that the 2nd respondent was liable for investigation, arrest or prosecution of the 1st respondent. On the other hand, the learned trial magistrate held that the appellant was 70% liable. Thirdly, the appellant contends that the mere acquittal of the 1st respondent did not prove malice; fourthly, that the judgment was silent on the claims of injuries pleaded at paragraphs 5 and 6 of the amended plaint; and, fifthly, that the damages awarded were exorbitant.

8. At the hearing of this appeal, learned counsel Mr. Isiji submitted that no evidence of malice was led implicating the appellant. It was contended that at the time of the incident, neither the appellant nor its employees knew the 1st respondent. Counsel submitted that the appellant and the police had a reasonable suspicion that the 1st respondent had stolen the sweets. The appellant also contended that it had no control over the subsequent investigations or prosecution.

9. The 2nd respondent did not file an appeal. However, the Attorney General partially supported the appeal. The gravamen of the written submissions by the 2nd respondent is that the police were acting upon a bona fide complaint; and, that the onus to prove malice fell upon the 1st respondent. The 2nd respondent contends that the burden was not discharged. In the event that liability is upheld by this court, the 2nd respondent submitted that the quantum of damages should not be disturbed.

10. At the hearing of the appeal, learned State Counsel, Mrs. Chelashaw, submitted that the evidence pointed to the fact that the appellant initiated the complaint; and, should accordingly bear full responsibility.

11. The appeal is contested by the 1st respondent. There is no cross-appeal on quantum of damages. Learned counsel Mr. Andambi referred at length to pages 22 and 23 of the record of appeal. It pertained to the criminal case. The trial magistrate had given four key weaknesses of the prosecution’s case. Learned counsel submitted that the complaint was actuated by malice; and, that the police should have exercised restraint before arresting or prosecuting the 1st respondent. Counsel submitted that holding the 1st respondent in police custody for three days was unconstitutional.

12. Lastly, learned counsel for the 1st respondent implored the court not to disturb the award of damages. Reliance was placed on the decision in Dr. Odhiambo Olel v The Attorney General, High Court of Kenya at Kisumu, Civil Case 366 of 1995. The same authority had been cited to the learned trial magistrate.

13. All the parties have filed written submissions. The appellant’s submissions were filed on 3rd March 2017. The 1st respondent’s submissions were lodged on 28th October 2013 while those by the 2nd respondent were filed on 15th March 2017. On 8th November 2017, I heard further arguments from all learned counsel for the parties.

14. This a first appeal to the High Court. It is thus an appeal on both facts and the law. I am required to re-evaluate all the evidence on record and to draw independent conclusions. There is a caveat because I have neither seen nor heard the witnesses. See Peters v Sunday Post Limited [1958] E.A 424, Selle v Associated Motor Boat Company Ltd [1968] E.A 123, Williamson Diamonds Ltd v Brown [1970] EA 1, Mwanasokoni v Kenya Bus Services Ltd[1985] KLR 931.

15. The facts giving rise to the claim are fairly straightforward. On 24th February 2002, the 1st respondent entered the appellant’s supermarket. He was accused of stealingtwo pieces of chewing gum. The appellant made a complaint to the police. The 1st respondent was arrested. He claimed he was detained at Eldoret Police Station for three days. He claimed that he was manhandled; and, that he suffered injuries at the hands of the police. He also claimed to have contracted dermatitis.

16. The 1st respondent was eventually charged in Eldoret Chief Magistrates Criminal Court. The proceedings were in Criminal Case 1091 of 2001, Republic v Wilson Mwangi King’ori (hereafter the criminal case). After about nine months; and, having heard three prosecution witnesses, the court found that the accused had no case to answer. He was acquitted under section 210 of the Criminal Procedure Code.

17. The 2nd respondent pleaded in his statement of defence that the Attorney General was not served with a notice of intention to sue. I have studied plaintiff’s exhibit 2. It is a letter dated 27th November 2002 from the Deputy Chief Litigation Counsel addressed to the Commissioner of Police. It is copied to the plaintiff’s counsel. It acknowledges receiptof a notice to sue on 14th November 2002. I thus find that the suit did not violate section 13A of the Government Proceedings Act.

18. The plaintiff’s evidence concentrated on his arrest, incarceration and prosecution. At page 88 of the record he testified as follows-

“On 24. 2.2002, I went to buy goods in Ukwala. Ukwala alleged I stole their shop items. I was locked up in the store and then taken to police station. In the store I was alone. I told them I had not stolen anything. At police station, I was in custody for three days then arraigned in court with theft charges. I pleaded not guilty. Ukwala called three witnesses. The witnesses said I stole. The court found I had no case to answer. I have court proceedings on that CR. 1091/01…..”

19. Two matters immediately spring to attention. First, the 1st respondent claimed in paragraph 6 (a) to (d) of the amended plaint that he suffered physical injuries and a skin infection, dermatitis. But from his evidence above, he was completely silent on that aspect. It follows that the claim for general damages for the injuries was not proved.

20. Secondly, the 1st respondent was charged for stealing contrary to section 275 of the Penal Code. The proceedings in the criminal case were produced as exhibit 1. After about nine months; and, having heard three prosecution witnesses, the court found that the accused had no case to answer. He was acquitted under section 210 of the Criminal Procedure Code. That fact is not contested by the appellant or 2nd respondent. Furthermore, under the Evidence Act, the criminal proceedings and judgment of the Chief Magistrates Court are conclusive evidence in this court that the 1st respondent was acquitted.

21. In his further evidence, the 1st respondent testified in the civil case as follows-

“I have sued Ukwala for alleging I stole. If they did not make a report to police station I could not have been arrested. I have sued the [Attorney General] because the police did not conduct proper investigations. I want to be paid for mental torture and malicious prosecution”

22. Upon cross examination, the 1st respondent claimed he had chewing gum in his hand as he left Ukwala. He said the sweets were not produced as exhibits. At page 22 of the record, the learned trial magistrate in the criminal case highlighted four weaknesses in the prosecution’s case. First, whereas PW1 and PW2 “produced blue sweets”, PW3, the investigating officer, “produced white sweets”. Secondly, PW1 said the accused was arrested outside the supermarket while PW2 said the accused “was going outside the supermarket”. Thirdly, the two witnesses contradicted each other on whether the accused signed a letter of apology. Fourthly, one witness said that a search was conducted on the accused. Another witness said that the accused produced the sweets without any search.

23. The key question is whether the above evidence proved the tort of malicious prosecution. Malicious prosecution is defined by the Black’s Law Dictionary, Thomson West Publishing, 8th Edition, 2004, as follows-

“The institution of a criminal or civil proceeding for an improper purpose and without probable cause. The tort requires an adversary to prove four elements-

i) The initiation or continuation of a law suit;

ii) Lack of probable cause;

iii) Malice; and,

iv) Favourable termination of the law suit”

24. The same dictionary defines malice as “i) the intent, without justification or excuse, to commit a wrongful act; ii) reckless disregard of the law or of a person’s legal rights; iii) ill will; wickedness of heart”. The authors state that number iii) is most typical in non-legal contexts. Actual maliceon the other hand is defined as “the deliberate intent to commit an injury, as evidenced by external circumstances”.

25. The above test was well explained by the East African Court of Appeal in Mbowa v East Mengo Administration [1972] E.A. 352 at 354 (Per Lutta JA). The principles have been restated by the Court of Appeal of Kenya in Patrick Nyakonu Ombati v Credit Bank Limited, Civil Appeal 9 of 2015 at Kisumu [2016] eKLR,Robert Ombeka v Central Bank of Kenya, Civil Appeal 105 of 2007 [2015] eKLR and James Karuga Kiiru v Joseph Mwamburi & others, Civil appeal 171 of 2000 [2001] eKLR. See also Contran J in Murunga v Attorney General [1979] KLR 138.

26. The burden of proving that the prosecutor was unreasonable or dishonest falls squarely upon the shoulders of the person prosecuted. In James Karuga Kiiru v Joseph Mwamburi & others (supra) the court had this to say:

“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.”

27. Applying those tests here, I am satisfied that the 1st respondent satisfied two parameters: First, the initiation of criminal proceedings by the Republic pursuant to a complaint by the appellant; and, secondly, that there was a favourable termination of the law suit.

28. But I find that the 1st respondent failed to prove that the appellant was driven by malice or actual malice in making a report of the theft to the police. Until the time of the incident, the 1st respondent and the two employees of the appellant were strangers. From the testimony of the 1st respondent that I set out at length, he did not lead sufficient evidence to show that the appellant or its employees had i)the intent, without justification or excuse, to commit a wrongful act; ii) reckless disregard of the law or of a person’s legal rights.

29. True, the 1st respondent was held in a store in the supermarket. In the testimony in the civil case, he said he sued Ukwala“for alleging I stole. If they did not make a report to police station I could not have been arrested”.He said he sued the Attorney General“because the police did not conduct proper investigations.The police were entitled to act on the complaint. The complaint was based on an incident that had occurred at the supermarket. I cannot then say that the subsequent detention was a false arrest.

30. From the record of the criminal proceedings, the two employees of Ukwala (PW1 and PW2) testified that the 1st respondent shoplifted the sweets. Their evidence and that of PW3 had contradictions that were highlighted by the trial court. It is not surprising that the 1st respondent was acquitted. But that by itself is not proof that the arrest and prosecution were actuated by malice.

31. I am unable to hold that the evidence established all the elements of the tort of malicious prosecution. The mere prosecution and acquittal of an accused person comprise onlytwo of the four elements that I particularized earlier. See Robert Ombeka v Central Bank of Kenya, Civil Appeal 105 of 2007 [2015] eKLR, Nzoia Sugar Company Ltd v Funguti [1988] KLR 399. See also Hicks v Fawkers [1878] 8 QBD 167, Kagane v Attorney General [1969] E.A 643.

32. I have said enough to show that the learned trial magistrate in the civil case misapprehended the evidence; and, the elements of the torts of false arrest; or, false imprisonment; and, malicious prosecution. It follows as a corollary that the appellant and 2nd respondent are not liable. The judgment of the lower court on liability is accordingly set aside.

33. I will turn to the award of damages. As a general rule, an appellate court will not interfere with quantum of damages unless the award is so high; or, inordinately low; or, founded on wrong principles. SeeButt v Khan [1982-88] KAR 1, Arkay Industries Ltd v Amani [1990] KLR 309, Karanja v Malele [1983] KLR 42, Akamba Public Road Services Ltd v Omambia Court of Appeal, Kisumu, Civil Appeal 89 of 2010 [2013] eKLR.

34. I stated earlier that the 1st respondent did not lead any or cogent evidence that he was manhandled or suffered injuries at the hands of the police. He did not lead evidence on the skin disease, dermatitis that he said he contracted in police cells. True, it is pleaded in the amended plaint; but no such evidence was led at the trial. True, the 1st respondent told the court he was held in a store at the supermarket; and, that he “want[ed] to be paid for mental torture”.But he did not elaborate on the nature of the torture.

35. The 1st respondent said he was held in custody for three days. Again no dates were supplied. I have studied the record very carefully. The 1st respondent admits he was arrested on 24th February 2001. From the record of criminal proceedings (exhibit 1) he was arrested by PW3 on that date at 1:50 p.m. I have perused page 5 of the record of appeal. It shows that he took plea two days later on 26th February 2001. I am thus unable to state conclusively that he was held in police custody beyond the period provided in the previous Constitution.

36. In short, the 1st respondent did not table sufficient or cogent evidence to justify an award of general or exemplary damages. In Kenya, punitive or exemplary damages are available where there is oppressive, arbitrary or unconstitutional action by the servants of the Government. See Bank of Baroda (Kenya Limited) v Timwood Products Limited [2008] KLR 236 at 250. Like I have stated, I am not persuaded that a basis has been laid for grant of punitive damages.

37. In the end, the award of general damages of Kshs 200,000 was made without proper evidential or legal foundation. Paraphrased, the award was founded on wrong principles. I accordingly set aside the judgment on damages.

38. The upshot is that the appeal on liability and quantum of damages succeeds. The judgment and decree of the lower court dated 10th April 2007 is hereby set aside. Instead, there shall be judgment dismissing the 1st respondent’s (plaintiff’s) suit in the lower court.

39. Costs follow the event and are at the discretion of the court. In the interests of justice; and, considering the predicament that has befallen the 1st respondent, I order that each party shall bear its own costs in the lower court; and, in the appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 7th day of December 2017.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:-

Mrs. Chelashaw for the 2nd respondent instructed by the Hon. Attorney General.

No appearance by counsel for the appellant.

No appearance by counsel for the 1st respondent.

Mr. J. Kemboi, Court Clerk.