[2022] KEHC 16553 (KLR)

Watuta v Maluki & another (Civil Case 137 of 2011) [2022] KEHC 16553 (KLR) (Civ) (14 October 2022) (Judgment)

Neutral citation: [2022] KEHC 16553 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 137 of 2011

DO Chepkwony, J

October 14, 2022

Between

Peter Kisovi Watuta

Plaintiff

and

Patrick Muthengi Maluki

1st Defendant

Attorney General

2nd Defendant

Judgment

1. Vide a plaint dated March 28, 2021, the plaintiff instituted the present suit against the defendants seeking general and exemplary damages together with costs for alleged unlawful arrest, confinement and malicious prosecution which caused him severe physical, psychological and mental torture.

2. He pleaded that that on or about March 6, 2009, the 1st defendant maliciously, without reasonable and or probable cause laid false information at the Buruburu Police Station accusing the plaintiff for having violently robbed him of several items. Consequently, the plaintiff was arrested and charged on July 20, 2010 with the offence of robbery with violence contrary to section 296(2) of the Penal Codevide Makadara Criminal Case No 283 of 2010.

3. According to the plaintiff, the prosecution offered no evidence in support of its case against the plaintiff and subsequently on November 4, 2010, the Director of Public Prosecution entered a nolle prosequidropping the charges against the plaintiff, leading to his release on the same day. The plaintiff added that he was detained between July 20, 2010 to November 4, 2010 without any medical attention causing his health to drastically deteriorate. The plaintiff alleges that while under detention, he suffered blunt injuries on the lower limb, difficulties in walking, bruises and a swelling on the back and psychological torture.

4. According to the plaintiff, the prosecution was malicious and without any reasonable cause. He went on to list the particulars of malice as follows;a.The 1st defendant laid false information that the plaintiff had laid false information that the plaintiff had violently robbed him while he knew it was untrue;b.The 2nd defendant’s agents and/or servants failed to carry out any independent investigations or at all verify the 1st defendant’s allegations before arraigning the plaintiff in court;c.The 2nd defendant failed to secure any material evidence or at all to support the charge;d.It took the police over one year to arraign the plaintiff in court from the date the report was made;e.The 2nd defendant’s agents preferred the charges against the plaintiff under instructions from the 1st defendant and for ulterior motives.

5. That by reason of the foregoing, the plaintiff avers that he was wrongly detained and deprived of his liberty, that he was greatly injured in his credit, character and reputation not to mention that he suffered considerable mental and bodily pain and anguish. In addition, the plaintiff claims to have suffered trouble, inconvenience, anxiety, expense and greatly injured in his business thereby suffering loss and damages. He articulated the particulars of loss, damages and injuries in the manner below;a.That at the time of his arrest, the plaintiff was engaged in a multimillion shillings contract with various non-governmental organisations which he has lost as a result of the arrest and prosecution;b.That he has lost a standing in the society;c.That he was exposed to court proceedings and judgment;d.Advocate fees for the Criminal Case No 2835 of 2010;

6. The plaintiff added that despite issuing a demand and notice to sue, the defendants have not made good his claim hence judgment should be entered against the defendants jointly and severally as sought in the plaint for:-a.General damages for unlawful arrest and confinement and malicious prosecution;b.General damages for severe physical, psychological and mental torture;c.Exemplary damages;d.Damages for loss of business;e.Costs and interest of the suit;f.Any other relief that the honourable court may deem fit to grant.

7. The 1st defendant also the claim vide his statement of defence dated June 14, 2021. He stated that he merely undertook his civic duty of making a complaint to the police and that he had no role or mandate or control over the investigations after making the complaint. In his view, he is not privy to the nolle prosequientered by the Attorney General. He denied that the arrest and prosecution of the plaintiff was malicious and without any probable cause as alleged, but was based on reasonable cause. He advanced the reasons under which he made the complaint as follows:-a.That the plaintiff and himself have had a history of land dispute;That in February 2009, the plaintiff unlawfully blocked the 1st defendant’s access road from which he (the 1st defendant) accessed his home.b.The plaintiff had told several persons that he was going to murder him ( 1st defendant) together with his family;c.The plaintiff had previously assaulted the 1st defendant’s worker;d.The plaintiff had occasionally threatened the 1st defendant with a bow and arrow;

8. The defendant described the plaintiff’s claim as incompetent, bad in law and an abuse of the court process. He therefore urged the court to dismiss the suit with costs.

9. The 2nd defendant has as well opposed the plaintiff’s claim vide the statement of defence dated May 31, 2011. The particulars of malice, injuries, loss and damages were also denied. However, the 2nd defendant was of the view that if the plaintiff was ever arrested, detained and charged in a court of law as alleged, then it was a result of a complaint received, recorded and investigations conducted that established a reasonable cause to have him prosecuted. The 2nd defendant added that it has a statutory duty to prosecute and more specifically the duty to:-a.Receive and act upon information that an offence cognizable in law has been committed;b.Cause investigations to be undertaken and pursue every credible evidence upon a reasonable and probable cause;c.Apprehend and detain in custody suspected offenders for purposes of and incidental to the furtherance of (2) above;d.Institute and take criminal proceedings against any person before any court in respect of any offense alleged to have been committed by that person.

10. Further, the 2nd defendant contends that fair arrest and subsequent charges in a court of law is not a reasonable cause to warrant damages for malicious prosecution and/or arrest since it emanates from a statutory duty. The 2nd defendant maintained that it was discharging its statutory duty in prosecuting the plaintiff. And in any event, the suit as drawn offends section 3 of the Public Authorities Limitations Act. The 2nd defendant thus urged for the suit to be dismissed with costs.

11. This matter proceeded to full trial whereby the plaintiff testified on his own behalf as PW1 and closed his case. The 1st defendant called two witnesses, whereas the 2nd defendant called no witness.

The Plaintiff’s Case 12. The plaintiff testified as PW1 on February 4, 2019 and adopted his statement dated June 13, 2018 and filed on June 26, 2018 together with his list and bundle of documents dated February 1, 2012 and filed April 12, 2012 as his evidence in-chief. He urged the court to compensate him for malicious prosecution, illegal confinement for three and a half months in remand, character assassination which made him lose all his friends and costs of the suit.

13. On cross-examination by the 1st defendant’s advocate, he stated that he is a retired chief public health officer having worked in the City of Nairobi and that he is now a shop keeper and also looks after his goats. He confirmed that the 1st defendant is his nephew, born in Kitui and lives in the same place he was born. That the 1st defendant’s parents died and were buried in the same place he was born but in a different compound from where he lives. That the 1st defendant’s father was buried in the area he was given by the plaintiff’s father and that the 1st defendant’s mother was buried in a parcel of land he took forcefully. He admitted that the family land is un-demarcated although there are known boundaries and there has existed a long land dispute between the 1st defendant and himself. He further admitted that the police handles all criminal cases and they exercise control over complaints made and the 1st defendant is not privy to decisions made by police, including the decision to prosecute the plaintiff. He confirmed that the 1st defendant alleged to have faced threats for being assaulted with bows and arrows and that was sufficient to make a complaint to the police and sufficient ground for charging him. He added that apart from the land dispute, there was no other misunderstanding with the 1st defendant, and further that the said dispute had been partly addressed by the district officer and conclusively determined by the Environment and Land Court.

14. On cross-examination by the counsel for the Attorney General, the 2nd defendant herein, the plaintiff stated that he sued the Attorney General because the police fall under him. Further, that it is the police who arrested and took him to the cells hence the link between the police and the 2nd defendant. He added that on July 20, 2010, at Githurai area in Nairobi, he had been previously contacted by someone form Makadara Police Station informing him of the complaint made against him. Nonetheless, after the arrest, he was taken to Buruburu Police Station where he spent three (3) days before being taken to court. His case was however mentioned four times but the complainant never appeared and eventually the nolle proseque was entered.

15. He could not tell whether the Attorney General was malicious but he blamed the police for not conducting thorough investigations before reaching the decision to prosecute him. He added that his health deteriorated while in the cells and that Dr Omondi Ogada conducted a medical examination on him immediately after he left the cells. When asked if his business for a living, he stated that although he was not working and had just retired, AMREF Kenya had promised him a job and could have been earning about Kshs 300,000/= per month. And according to him, this is the business he was talking about.

16. On re-examination, he stated that the assault case was found to have been malicious and dismissed. That the issue of creating disturbance was found to have been a frame up and was equally dismissed. The issue of robbery with violence was as well found to be malicious and was withdrawn by the Attorney General. He added that the cases against him by the 1st defendant, including the Environment and Land Court case have never held any water and even in the ELC case costs were awarded but the 1st defendant has up todate not paid the costs. That marked the close of the plaintiff’s case.

1st Defendant’s Case 17. The defence case proceeded on March 7, 2022 whereby the 1st defendant called two witness. The 1st defendant testified as DW1 and adopted his statement dated October 3, 2018 as his evidence in chief. He further produced his list and bundle of documents dated October 3, 2018 as defence exhibits 1 to 9. DW1 testified that the plaintiff is his uncle and he had reasons to believe that he was among the persons who attacked him on the night of March 1, 2009, broke into his home through the window in Kimathi Estate and injured him by breaking his leg or the mastermind to the breaking in. He added that the robbers claimed that they had been sent by someone whom he had a land issue with and had taken his wife. That while they were attacking him, someone called and the robbers told the caller that they had finished the job and the only remaining thing was to kill him. Further, that fearing for his life, DW1 went to his sister’s’ place at around 6 am and later on reported the attack to Jogoo Police Station. He added that the plaintiff was the only person they had a land dispute with and it started in the year 2003 immediately after the demise of DW1’s father although the matter had been addressed by their area chief but no conclusion was arrived at. In his testimony, he told the court that there was hot blood between the plaintiff and himself after the plaintiff accused him of having an affair with his wife (plaintiff’s wife). This ended up to the DW1 instituting a defamation case against the plaintiff.

18. On cross-examination by counsel for 1st defendant, he maintained that after reporting the case, he expected the police to investigate and it was not his fault for the case against the plaintiff to be dismissed for lack of evidence. However, he admitted that he caused to be filed against the plaintiff a defamation case in 2004 which was withdrawn, Criminal Assault Case No 958 of 2004 in Kitui which was as well dismissed. The assault Criminal Case No 970 of 2010, Land Case No 95 of 2009 and assault Case No 540 of 2009 which were filed by his worker, Mutinda but were dismissed. However, he believes that the cases against the plaintiff were dismissed because the plaintiff was a senior public officer. He further testified that there is no personal vendetta between him and the plaintiff.

19. On cross-examination by the counsel for the 2nd defendant, he insisted that there existed a land dispute between him and the plaintiff. That he filed a defamation case against the plaintiff for alleging that he had an affair with his wife and that the case was withdrawn since the plaintiff sent his brother to implore upon him to withdraw the suit. He confirmed that the plaintiff blocked his path and he reported the matter to one Kiptum who later sent Mugambi on March 14, 2009 to view the barricade and ordered plaintiff to remove it and the matter was settled. He further stated that he was attacked on March 1, 2009, a day after the removal of the barricade.

20. On re-examination, DW1 reiterated that it is the duty of the police to take action. He reiterated the contents of his evidence in chief and added that of all complaints he made against the plaintiff, the plaintiff was not arrested because he was a chief public health officer in Nakuru.

21. DW2, Justus Mwangangi adopted his statement dated October 3, 2018 and testified that he is a casual labourer and was previously employed by the plaintiff. He stated that he knew the plaintiff as early as 2007 when he started working for him and that there was a time the plaintiff asked him to remain behind to accomplish some work he wanted to assign him. He however learnt that the alleged work was to kill the 1st defendant but he instead told the plaintiff he could not recognize the 1st defendant after he had moved to Nairobi. Nonetheless, the plaintiff gave him Kshs 200/= to buy bows and arrows to be used for the task and the plaintiff leaked to him that he had paid some people Kshs 100,000/= for the same task and since they failed, he would pay him Kshs 50,000/= if he undertakes to accomplish the task. However, DW2 could not tell the reason why the plaintiff wanted the 1st defendant dead but he knew of the land dispute. That 2 months later while at Mutito, he met Mutinda, the 1st defendant’s worker who told him he was from hospital and that he had been attacked by the plaintiff. He then contacted the 1st defendant and informed him of the assault.

22. DW1 further added that he was accompanied by the 1st defendant to the Directorate of Criminal Investigations’ offices to record a statement on all that had transpired and on the information he was privy to, after which the plaintiff never talked to him again.

23. On cross examination by the Attorney General’s Counsel, the 2nd defendant stated that he had no disagreements with the plaintiff and that he did not fabricate his evidence but on being cross examined by the plaintiff’s counsel, he maintained that he worked at the plaintiff’s specifically to put up a fence and was paid Kshs 200/= by the plaintiff’s wife. He also admitted that he had been sent Kshs 1,000/= by the 1st defendant as fare to come to Nairobi.

24. On re-examination, he maintained that he had no grudge against the plaintiff.

2nd Defendant’s Case 25. The 2nd defendant did not call any witness and that marked the close of the defence case.

26. Parties were thereafter directed to file written submissions which they did. I have read through the said submissions, and established that they reiterated the grounds summarized above and I wish not reproduce the same here.

Analysis and Determination 27. Having considered the pleadings and evidence on record as well as the submissions made by the parties, it is not in dispute that the complaint culminating to prosecution of the plaintiff was instituted by the 1st defendant. Thus in my humble view, the issue for determination is whether the claim for damages and malicious prosecution was proved on a balance of probabilities.

28. The principles governing a claim founded on malicious prosecution were laid down by Cotran, J in Murunga –vs- Attorney General [1979] KLR, 138 as follows: -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.

29. It therefore goes without saying that the tort of malicious prosecution is established where a person caused the arrest and prosecution of another person without reasonable or probable cause. In the present suit, it has not been denied that the criminal suit against the plaintiff was instituted by the defendants but the charges against the plaintiff were withdrawn for lack of evidence as per the 2nd defendant’s nolle prosequidated October 28, 2010 entered in favour of the plaintiff. Therefore this court finds that it has been satisfactorily shown that the criminal suit against the plaintiff was instituted by the 2nd respondent following a complaint made by the 1st defendant and the suit was determined in the plaintiff’s favour. The first and second grounds have therefore been met and the remaining issue for contention is whether the prosecution was instituted without probable cause or otherwise malicious.

30. On whether the matter was instituted without a reasonable and probable cause, it is trite law that the onus of proving this is on the plaintiff. In the present suit, the plaintiff’s ground for malicious prosecution is based on the fact the case was withdrawn for lack of evidence and that the 1st defendant never attended court for hearing. The Court of Appeal defined what amounts to probable cause in the case of Robert Okeri Ombeka –vs- Central Bank of Kenya [2015] eKLR which cited with approval the case of Hicks –vs- Fawkers, (1878), 8 QBD 167, where at page 171, Hawkins J defined ‘probable’ and ‘reasonable cause’ as follows:“Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary 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.”

31. Guided by the above cited case, the issue of malice in my view has not been proved. It is on record that the 1st defendant testified that he was attacked at night and that the attackers told him that they had been sent by a person whom they hand a land issue with and that he had taken that person’s wife. It is admitted that the two parties had a land tussle and there were made that the 1st defendant had an affair with the plaintiff’s wife whereby a defamation case was filed on that ground but was later withdrawn. All those facts have not been rebutted by the plaintiff. The history underlying the relationship between the plaintiff and the 1st defendant confirms the tug of war and accusations between the two. DW2 further testified that the plaintiff had approached and persuaded him to kill the 1st defendant, another fact that has not been rebutted. In my view, all these allegations are viable grounds to place the plaintiff at the scene assuming the facts to be true.

32. I am further persuaded that the 1st defendant was only under duty to elucidate the grounds to the police and after reporting the case he was under no further duty to decide on whether to pursue the criminal case which simply the preserve of the 2nd defendant in discharging its constitutional duty. I am of further view that the allegation that there was malice just because the case was withdrawn for lack of evidence cannot stand because section 157 of the Constitution grants the statutory power to withdraw criminal suit as the 2nd defendant did. I buttress the above view with excerpts from among other cases the case of Jediel Nyaga –vs- Silas Mucheke 1987 (CA No 59 of 1987), where the Court of Appeal stated;“The appellant having reported to the police about the respondent’s action of damaging his crops, the police took over the matter to investigate the respondent for a possible offence … Once the appellant gave the report, he ceased to have anything to do with the matter.”

33. Similarly in the case of Robert Okeri Ombaka –vs- Central Bank of Kenya (supra), the Court of Appeal observed;“In this appeal there is no evidence that the respondent made a “false” report or that the it was actuated by “malice”, or that his prosecution was brought “without reasonable or probable cause”. That a suspect was acquitted of a criminal case is not a ground for filling a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”

34. It is not denied that the 1st defendant was attacked and he reasonably suspected the plaintiff to be the master mind based on the history between the two upto the date of his attack. I am therefore not persuaded that in making the report to police the 1st defendant was motivated by malice or that the 2nd defendant in withdrawing the case for lack of merit was without reasonable cause.

35. In the upshot, this court finds that there was no malice on part of the defendants. As such, the plaintiff’s suit is found to be without merit and is hereby dismissed. Each party to bear own costs.

36It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF OCTOBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:M/S Essami counsel holding brief for Mr. Nyamu counsel for PlaintiffNo appearance for and by DefendantCourt Assistant - Simon