[2022] KEHC 3006 (KLR)

Vastu Company Limited v Mwangi (Civil Appeal 547 of 2019) [2022] KEHC 3006 (KLR) (Civ) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 3006 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 547 of 2019

JK Sergon, J

June 17, 2022

Between

Vastu Company Limited

Appellant

and

Daniel Mwangi

Respondent

(Being an appeal from the judgment and Decree of the Hon. E. Wanjala (SRM) delivered on 5th September 2019, in Civil Case No.8311 of 2017)

Judgment

1. At the onset, the respondent herein lodged a suit against the appellant and two other parties not before this court, vide the plaint dated 21st November, 2017 and prayed for reliefs in the nature of general and special damages together with costs of the suit and interest on the same.

2. The respondent averred in his plaint that he worked for the appellant as a cluster foreman until resigning in 2006, and that on or about April 5, 2011, the appellant's employees caused him to be arrested, detained, and later charged with forgery in violation of section 349 of the Penal Code at Makadara Law Court via Criminal Case No. 1574 of 2011.

3. The respondent pleaded in his plaint that on 8th April 2011 the appellant’s employee caused the plaintiff to answer the above charges and that his arrest charges and prosecution brought by the appellant were actuated by malice, without reasonable and or probable cause.

4. The respondent further pleaded in his plaint that he was acquitted on 14th March 2017 under section 215 of Kenya's criminal procedure code laws, after a lengthy and numerous court appearances for hearings, and that his arrest has harmed his reputation and credit, as well as caused considerable trouble, inconveniences, anxiety, and expenses, and as a result he has suffered loss and damage.

5. The appellant entered appearance on being served with summons and filed its statement of defence on 20th December, 2017 respectively to deny the respondent’s claim.

6. At the hearing of the suit, the respondent testified while appellant relied on the testimony of one (1) witness. After the full hearing judgment was delivered in favour of the respondent.

7. The appellant has now sought to challenge the aforementioned Judgment on appeal and has put forward eight (8) grounds of appeal as seen in the memorandum of appeal dated 20th September, 2019:i.That the Learned Trial magistrate erred in fact and in law in failing to appreciate that the criminal proceedings against the Respondent were not set in motion by the appellant as the appellant does not have any investigative and or prosecutorial power and any action taken by the police and the Prosecutor are independent of the appellant.ii.That the Learned Trial magistrate erred in fact and in law in failing to hold that the appellant was not actively instrumental in causing the respondent to be arrested and action taken against him.iii.That the Learned Trial magistrate erred in fact and in law in failing to consider that the appellant only made a complaint to the police and nothing more and what followed in regard to the investigations and prosecution of the respondent had nothing to do with the appellant.iv.That the Learned Trial magistrate erred in fact and in law in failing to appreciate that for a claim of malicious prosecution to suffice against the appellant, the respondent must prove on a balance of probabilities that the police were acting as agents of the appellant.v.That the Learned Trial magistrate erred in fact and in law in failing to appreciate that there was reasonable and or justifiable cause to justify the complaint made to the police by the appellant.vi.That the Learned Trial magistrate erred in fact and in law in failing to take into account the settled elements of law crucial to sustain a claim for malicious prosecution.vii.That the Learned Trial magistrate erred in fact and in law in failing to consider the appellants defence, submissions and authorities annexed thereto.viii.That the Learned Trial magistrate erred in fact and in law in failing by making an award on General Damages that was inordinately high.

8. This court gave directions to the parties to file written submissions on the appeal. The appellant vide his submissions dated 16th February, 2022 argues that since the Memorandum of appeal sets out 8 grounds of appeal which they decided to compress into 2 heads and argue them as follows:a)Grounds 1 to 7 –Failure to consider that making a complaint to the police does not actuate to malicious proceedings; andb)Ground 8-Erroneous awarding of damages whilst the claim of malicious prosecution was not sufficiently proved.

9. The appellant submits that for a claim of malicious prosecution to stand certain legal elements ought to be satisfied and that that the respondent did not satisfy any of the elements as it will be stated below. On this the appellant relied on a recent High Court case of Tobias Moinde Kengere v Postal Corporation of Kenya & 2 Others(2019) eKLR. In the said case the Honourable Judge in citing the authors of Clerk and Lindsell on Torts, 18thEdition at page 823, laid down the essentials of the tort of malicious prosecution are as follows:“in an action of malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge, secondly that the prosecution was determined in his favour, and thirdly that it was without reasonable or probable cause; fourthly that it was malicious. The onus of proving every one of this is on the claimant.Evidence of malice of whatever degree cannot be invoked to dispense with or diminish the need to establish separately each of the first three elements of the torts.”

10. It is the appellant’s submissions that it neither played an active role nor set the law in motion as his role in the criminal case was only limited to making a police report, then the police subsequently after carrying out their investigation instituted criminal proceedings against the respondent. On this issue the appellant relied on the case of Gitau v Attorney General(1990) KLR 13 which aptly defined the concept of setting the law in motion. In the said case, Trainor, J held this“To succeed on 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.”

11. The appellant contends that for a claim of malicious prosecution to succeed it must be shown that the police officers were agents of the defendants. The appellant further contends that from the evidence on record the respondent has not discharged its burden by showing on a balance of probabilities that the police were acting as agents of the appellant.

12. On this the appellant relied on the case West Nile District Administration v Dritto(1969) EA 324 which was cited in the case of Attorney General & 2 Others v Josephat Maina Karuoro (2018) eKLR where it was held that a person instituting legal proceedings for malicious prosecution must prove…….that the police were agents of the defendants.

13. It is the appellants submissions that its report to the police was solely based on the fact that there was a forged document which originated from the respondent and that there was malice whatsoever on the part of the appellant and further that it is settled law that prosecution of a person does not in itself become prima facie tortious and or malicious.

14. The appellant on this argument relied on the case of James Karuga Kiiru v Joseph Mwamburi and 3 Others (2001)eKLR where it was held that:-“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.”

15. The appellant further relied on the case Dr. Lucas Ndungu Munyua v Royal Media Services Limited & Another(2014) eKLR, it was stated that ;-“With respect to malice, the law is clear that the mere fact that a person has been acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor.”

16. In reply, the respondent adopted their earlier submissions filed in the lower court, in which he submitted that on various times between 1st April 2010 and 30th April 2010 in Nairobi, with the purpose to deceive, fabricated a document, namely the appellant's complimentary slip, claiming to be signed by the appellant's directors.

17. The respondent further submitted the complainant in the charge was Vastu Company Limited, the appellant in this case, and its director, Mr. Navin Patel, was the witness, along with the third defendant, who is an employee or agent of the appellant.

18. The respondent contends that during the hearing, one Mr. Pramodari Patel, who had signed the statement on behalf of the appellant, admitted to reporting the issue to the Kasarani Police Station, where the respondent was detained and prosecuted.

19. The respondent further contends that the criminal case went on for hearing for a long time and when the matter was concluded, the accused was acquitted under section 215 Criminal Procedure Code.

20. The respondent submitted that the special damages were stated and strictly proved by way of production of the necessary receipts to the tune of Kshs.50,000/= in respect of the defence legal fees and Kshs.229,106. 80/= for transport, accommodation, food and other expenses all totaling to Kshs.279,106. 80/=

21. On the issue of quantum for damages, the respondent relied on the case of Sammy Kiprotich Tangus v the Honourable Attorney H.C.C No.235 of 2008 where the court awarded Kshs.3,000,000/=.

22. This court has the duty as the first appellate court to analyse and re-evaluate the evidence before the trial court and arrive at its own conclusion, while bearing in mind that it neither saw nor heard the witnesses testify (See the case of Selle –vs- Associated Motor Boat Co. Ltd [1968] EA 123). It then follows that having carefully considered the record of appeal and the submissions by the parties, I note that the only issues that fall for determination are;i.Whether the Respondent proved his case for malicious prosecution against the Appellant to the required standards? And if so,ii.Whether the Appellant is liable to compensate the Respondent in damages for malicious prosecution and what damages should be awarded to the Respondent.

23. It is trite law that for malicious prosecution to be proven there are four elements that must be proven as was held in Mbowa v East Mengo District Administration {1972} EA 352;a)The plaintiff must show that prosecution was instituted by the defendant, or by someone for whose acts he is responsible;b)That the prosecution terminated in the plaintiff’s favor;c)That the prosecution was instituted without reasonable and probable cause;d)That the prosecution was actuated by malice.

24. Turning to the matter at hand and on the first principle, it is clear that the proceedings in the criminal case were instituted after complaints were lodged by the appellant’s director one Mr. Navin Patel on diverse dates was charged with the intent to defraud forged a document namely complimentary slip of the appellant and the same time the hearing as corroborated by one witness.

25. The second principle relates to how the criminal proceedings were terminated. I have carefully perused the proceedings in the criminal case. The respondent was acquitted under section 215 of the C.P.C after several years.

26. It is true that the respondent was acquitted of the offences he was charged with. This however does not connote malice on the party who instituted the prosecution so long as the same was done honestly, reasonably and without malice. In the case, Republic v James Mureri Karugu & 2 others [2019] eKLR it was held that the respondent has the burden to prove that the prosecutor acted dishonestly and unreasonably. In the trial before the lower court, this burden was not discharged. The 1st respondent did not demonstrate how the police (prosecutor) acted maliciously and dishonestly.

27. On the aspect of the prosecution having been instituted without any reasonable and probable cause, Salmond, a legal scholar in his book Salmond on the Law of Torts defines reasonable and probable cause to mean:-“.... a genuine belief, based on reasonable grounds, that the proceedings are justified.”

28. The respondent contends that the appellant filed a complaint against the respondent because the respondent had filed a claim seeking payment of his dues, which the appellant refused to pay and which the respondent claimed was still owed to him.

29. In addition, the prosecution failed to call a document examiner to testify that the document was not false and could not be used to defraud the appellant company. I further believe that if the appellant filed a complaint knowing full well that the information on the paper was true and that the respondent could not swindle the appellant, the appellant acted with malice, and there was no reasonable or probable cause to file a forgery charge with the police. As a result, I conclude that no reasonable and probable cause to charge and prosecute the appellant was shown.

30. With respect to malice, the law is clear that the mere fact that a person has been acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor. Actual spite or ill will must be proved. In Nzoia Sugar Company Ltd v Fungututi[1988] KLR 399, the Court of Appeal held;“Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company.”

31. It is insufficient to simply state that the criminal proceedings were motivated by malice. There is a need to establish how the court's procedure is being abused or exploited, as well as to indicate or show the foundation on which the respondent’s rights were seriously threatened by the criminal prosecution. In the absence of concrete evidence that a criminal prosecution was a "abuse of process," a "manipulation," "amounts to selective prosecution," or any other process, or even that the respondent did not receive a fair trial as guaranteed by the Constitution, it is not mechanical enough to conclude that the existence of an acquittal is sufficient to amount to a fair trial.

32. The caseKagane and Others v Attorney General and Another[1969] EALR 643, held that reasonable and probable cause is an honest belief in the guilt of the accused founded on reasonable grounds of existence of circumstances that point to the commission of the offence.

33. The respondent averred that the appellant claimed he faked documents, as a consequence of which he was detained and charged with forgery in violation of section 349 of the Penal Code, and that his arrest was made with malice and without reasonable or probable cause, but he was acquitted.

34. In the humble view of this court. The lodging of the complaint and prosecution of the respondent was instituted without reasonable and probable cause. There were no reasonable grounds for the prosecution of the respondent.

35. Having found that there was no reasonable and probable cause that led to arrest and prosecution of the respondent, it naturally follows that there was equally malice that was demonstrated on the part of the appellant or the relevant government agencies lodging of a complaint of forgery against the respondent.

36. The trial court awarded a sum of Kshs.1,200,000/= damages for malicious prosecution and relied on the case of Cosmas M Nzau & 2 others v The Honourable Attorney General Nairobi high court civil suit No.714 of 2000. where the court awarded Kshs.800,000/= for each of the plaintiff for malicious prosecution. The respondent had proposed a sum of Kshs.2,500,000/= since he was in the construction industry his case took quite a number of years from 2006 to 2017 before it was determined and also taking into account that the appellant used to travel from Nakuru to Nairobi to attend court.

37. The court finds that the respondent did prove its case to the required standard on a balance of probability, and that the trial court's judgment was based on sound analysis of the law and the evidence tendered in court. The appeal is dismissed with costs with a correction of the clerical error in special damages which read Kshs.279,106/=as per the plaint and not Kshs.79,280/=.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. .....................................J. K. SERGONJUDGEIn the presence of:................... for the Appellant................... for the Respondent