[2017] KEHC 273 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NUMBER 57 OF 2008

WILSON OLILO AMBOYE..........................................................1ST PLAINTIFF

JACKSON OTINYA....................................................................2ND PLAINTIFF

HABBAKUK AKANGA INGATI...................................................3RD PLAINTIFF

JANE NANDI.............................................................................4TH PLAINTIFF

REBECCA OMUKUBA WILLY....................................................5TH PLAINTIFF

NANCY OWANO KUSINDI........................................................6TH PLAINTIFF

MABLE ASIKO NYONGA...........................................................7TH PLAINTIFF

VERSUS

THE HON. ATTORNEY GENERAL..........................................1ST DEFENDANT

THE RIGHT REV. DR. BYRUM MAKOKHA

REV. JAMES OPUNDE

JEREMIA MAINYE

WILIAM IMANYUL(Sued as the Trustee

of the Church of God in East Africa(Kenya)......................................2ND DEFENDANT

JUDGMENT

1. BACKGROUND

The plaintiffs at all material times were members of the 2nd Defendant, Church of God in East Africa at Kaloleni, Nakuru County.

The plaintiffs sued the said church through its registered trustees together with the 1st Defendant, the Hon. Attorney General.

The facts that gave rise to the suit are stated in the plaint dated 19th March 2008 and filed on the 10th April 2008.

Prior to this date, there existed some dispute in court between the church trustees and some of its members vide Nakuru SRMCC No.930 of 2005.

2. On the 15th December 2008, the court (Hon. Emily Ominde) was to deliver her ruling on a contempt of court application against some members who had been sued by the Trustees of the church. As would have been expected, the members of the church went to court at Nakuru law courts to hear the ruling that was delivered at about 3. 45p.m in presence of the church members.

As a result, the members including the plaintiffs were happy over their victory in court proceeded to the church compound at Kaloleni to give thanks to God for their win against the Trustees, arriving there singing and praising.

3. As this celebration was on going, the police accompanied by the church pastors descended on the church members, calling those who were members to enter into the pastors house therein and thereafter arrested and booked them for a night stay at the Bondeni police station.

On the following day, the arrested members were escorted to court and charged with an offence of house breaking contrary to Section 304(1) and stealing contrary to Section 279(b) of the Penal Code.

4. The particulars of offence as stated in Nakuru Chief Magistrates Criminal Case No. 3242 of 2005 were stated that they broke into the dwelling house of Daudi Eseme and stole Kshs.50,000/= among other things the property of Daudi Eseme. Daudi Eseme was the pastor (now deceased).

Later, the charge was substituted with one of malicious damage to property contrary to Section 339 of the Penal Code and disturbance likely to cause a breach of the peace contrary to Section 95(1) (b) Penal Code.

5. Among the arrested and accused persons were the plaintiffs who were the unwilling guests of the state at Bondeni police station on the 15th December 2005.

The case proceeded to hearing and on the 18th October 2007, the accuseds' (plaintiffs) were acquitted under Section 210 of the Criminal Procedure Code.

It is that acquittal that gave birth to the case before me.

6. By their plaint filed on the 10th April 2008, the plaintiff's accused the 1st defendants for unlawfully and maliciously causing their arrest and prosecution by the 1st defendants agents and by the unlawful and malicious arrest and by relying on falsehoods, false testimonies and defamation of their characters through the malicious prosecution that resulted to their acquittal for lack of sufficient evidence.

7. They therefore sought the following reliefs from all the defendants as follows:

a) General damages for unlawful arrest, detention and maliciousprosecution.

b) Aggravated damaged for malicious and unlawful arrest and detention.

c) Punitive damages

d) General damages for defamation

e) Costs and interest.

8. In their statements of defence, the 1st defendant, the Attorney General denied all the plaintiffs claims and raised the defence of

“reasonable and probable cause procured by instructions of the 2nd defendant that the plaintiffs had committed an offence.”

The 2nd defendants likewise denied the plaintiffs claim in their defence stated 15th May 2008, but in the alternative stated that the complaint made by the 1st defendant was justified within the law and that the 2nd defendants had no control over the 1st defendants action to prosecute the plaintiffs in Criminal Case No. 3242 of 2005that culminated to an acquittal.

They denied entitlement to damages as sought by the plaintiffs.

9. THE PLAINTIFFS' CASE

The plaintiffs called three witnesses whose statements had been filed and which they adopted as their testimonies.

PW1 Habbakuk Akaranga Ingati

A member of the church and the 3rd plaintiff produced his tithing card for the church to confirm his membership of the church (PExt 1). He testified having been one of the church members who were in court on the 15th December 2005 when the ruling in CMCC NO.930 of 2005 was delivered.

10. He testified that he later retreated to his residence near the church compound when he saw police vehicles enter into the church compound, that inside was Rev. Enos Ocholo, that he followed into the church compound where many members had gathered. He testified that once there, the police officers entered into the pastor's house and he too entered together with others when the police requested them to enter. He further testified that once therein, the police took their statements and arrested about 15 of them, yet they did not know why they were so arrested, that they were taken to Bondeni police station and locked in the cells and on the 16th December 2005 were taken to court and charged in criminal Case No. 3243 of 2005.

11. His testimony was that he and the other plaintiffs attended court 12 times upto the 18th October 2007 when they were acquitted for lack of evidence to support the charges.

On cross examination, it was his testimony that the plaintiffs were innocent church members and arrested unlawfully and maliciously upon a false report by the Rev. Eseme who had disagreed with church members on the use of money for renovation of the church.

12. He further stated that as a businessman dealing with computers, his reputation was degraded due to the allegation that he had stolen, that he lost friends but had no documents to prove but continued to go to the same church.

13. PW2 IS THE 5TH PLANTIFF REBECCA OMUKURA WILLYand an elder of the church of over 20 years. Her evidence is similar to that of PW3(below). That those who were church members were called by the police to enter into the pastor's house from where 15 of them including the plaintiffs were arrested for reasons they did not know.

14. PW3 WILSON OLILO AMBOYEthe 1st plaintiff, a member of the church (tithing card produced) testified that at 6. 00p.m on the 15th December 2005, he was called and informed that some people were removing goods from the pastors house. That upon going to the church, he found Rev. Eseme and Rev. Ochola and the OCS after which, when inside the pastors house with others, they were all arrested. He testified that Rev. Eseme is the one who was pointing at and telling the police who to arrest.

He produced the Notice of Intention to file suit against the Attorney General – DExt 14 (a) and (b).

15. Upon cross examination PW3 testified that it is Rev. Eseme who told the police officers to arrest all those who were inside the pastors house. He denied seeing any goods outside the pastors house having been removed, and that the police arrested him and the others for no reason and that they failed to investigate the pastors complaints before arresting them.

16. DEFENCE CASE

The defendants called two witnesses.

Rev. Joseph Ambani testified as DW1

He was an assistant pastor at the Kaloleni Church of God-Nakuru at the material date, the 15th December 2005, that pastor Rev. Eseme had died (December 2005). He acknowledged the case CMCC No. 930 of 2005 between the Church trustees and members and the ruling that was not in their favour. His testimony by and large is that after the ruling, the plaintiffs and other people went to the pastors house and removed household goods, upon which they reported to the police and when the police came, people became unruly, shouting. It is at this point that he, Rev. Eseme and Rev. Ochola asked the police to arrest all those who were inside the pastors house, among them the plaintiffs. It was his testimony that they were taken to the police station and charged the following day in criminal case No. 3242 of 2005.

17. It was his testimony that despite over ten people testifying, the court acquitted the plaintiffs as it became clear that there was no proper identification of the persons who damaged the pastors house.

Upon cross examination, DW1 stated that the police had authority to arrest and arrested those who were inside the house, and that he did not see any of them (plaintiffs) break any property at the church or in the pastors house.

18. DW2 was Samuel Amasaka Musumba,the then church caretaker. He relied on his statement filed on the 4th August 2011. He stated that he saw everything that happened on the 15th December 2005.

That the members went into the church compound celebrating the court case Victory where he was a witness (for the prosecution), that the 1st plaintiff prayed, that one Mboya(not a plaintiff in this case) picked a stone, and broke the door that the police arrested the plaintiffs upon Rev. Eseme pointing them. He testified that he was tied and beaten by the church members, as others entered the pastors house and removed his house hold goods.

19. Upon the above evidence, parties filed their written submissions which they highlighted.

20. The evidence adduced by all the parties comment three main issues for determination:

1. Whether the plaintiffs have locus standi to sue the defendants,and whether the defendants are capable of being sued.

2. Whether the plaintiffs were unlawfully and malicious prosecuted at the instigation by the 2nd defendants.

3. The role of the 1stdefendant in the alleged unlawful and malicious prosecution of the plaintiffs.

4. Whether the plaintiffs are entitled to the damages pleaded in the plaint.

21. ANALYSIS OF EVIDENCE, SUBMISSIONS AND FINDINGS

ISSUE NO. 1.

The plaintiffs produced their church tithing cards to evidence their being members of the church. It was not disputed that the 2nd defendants were the trustees of the said church. Under Article 4(3)(a), (b) of the said church Constitution, full membership is open to all Christians who attend and participate in obligatory requirements as tithing offering and other church practices. This was confirmed by the letter of an alleged expulsion from the church dated 3rd August 2005 by the Rev. Byrum A. Makokha, one of the trustees and the 2nd defendant.

It is not disputed that the 2nd defendant are the trustees of the church. They are therefore properly sued and the plaintiffs being members of the church have the necessary locus standi to sue them. They are therefore properly used and the plaintiffs being members of the church have the necessary locus standi to sue them.

See John Ottenyo Amwayi & 2 Others -v-s Rev George Abura & 2 Others, NBI HCCC No. 6339 of 1990where Bosire J (as he then was) and in the Trustees Kenya Redeemed Church & Another -vs- Samuel M'Obuya & 5 Others (2011) e KLR,it was held that:

“a society can only sue or be sued through its due officers---”

22. ISSUE NO. 2

Evidence adduced by the plaintiffs witnesses all agree that the plaintiffs were arrested upon a report made by the 2nd defendants Rev. Enos Ochola Rev. Eseme (deceased), and Rev. Ambani being agents and leaders of the church. Rev. Ambani (DW1) admitted having called the police to arrest the members who he alleged were shouting and removing the pastors household goods from the churchhouse. He also admitted having instructed Rev. Ochola and Rev. Eseme to point out to the police officers to arrest persons in the the pastor's house.

23. The plaintiffs evidence was that they were only celebrating their court case victory and that there was no disturbance created or any property destroyed. I have considered the entire evidence on these arrests. There is no dispute that the arrests were instigated by the 2nd defendants agents. They set the proceedings into motion.

The issue is whether there was any justification and necessity to require the plaintiffs to be arrested.

24. The defence did not adduce any satisfactory evidence of the plaintiffs having been in the process of committing a crime in the church house or compound. Though all the plaintiffs were at the church compound, no evidence was adduced of any damage to the pastors property. Indeed, it is on record that the Rev. Eseme came with the police (OCS) and the plaintiffs and others who were church members were requested to enter the pastors house, and while therein Rev. Eseme pointed them to the police for arrest, for reasons they did not know.

The arrests were procured through the instructions of the late Rev. Eseme, and without any reasonable or probable cause. The alleged offence of vandalism, burglary and stealing were not proved.

25. It is trite that police officers are required to investigate a complaint before an arrest and prosecution are preferred.

The police officers are obligated to act impartially and upon independent investigations on receipt of a complaint. None of the plaintiffs statements were taken at the scene of the alleged crime or later at the Bondeni police station. The court was not told whether or not a written complaint was ever recorded at the police station prior to the arrests by the complaints.

26. In Stephen Gachau Githaiga & Another -vs- Attorney General (2015) e KLR,the Judge reiterated the need and obligation for an independent and impartial investigation by law enforcement officers before arrest and preferring of criminal charges against a suspect.

See also James Karuga Kiiru -vs- Joseph Mwamburi & 3 Others C.A Nairobi 171 of 2000where the court held that:

“---- Mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. 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 two words, the police or any other prosecution arm of the Government is not a mere conduct of complaints.---”

27. I have considered evidence adduced by DW2 of chaotic scenes at the church compound. His evidence was not collaborated by any other person despite there having been very many people at the compound. He stated that he was a prosecution witness in the case that the 2nd defendants lost. I am not convinced that his evidence was credible except that it was Rev. Eseme who pointed out to the police who to arrest.

28. The Law enforcement agents of the 1st Defendant no doubt acted without any reasonable and probable cause. All the witnesses both for the plaintiffs and for the defendants agree that no investigation was carried by the OCS(police) save that the Rev. Eseme and others “pointed out who to arrest to the police.” They did not exercise their independent minds and discretion. They were instructed by the Rev. Eseme. See Stephen Gachau Githaigacase above. They therefore had no reason or probable cause to arrest, detain and prosecute the plaintiffs.

29. ISSUE NO. 3.

The plaintiffs were charged with various offences the following day and which were later amended.

In George Masinde Murunga -vs- Attorney General (1979) e KLR, four elements are required to justify the tort of malicious prosecution. See also Pauline Waruiru Gicheru -vs- Robert Kiragu Kimwaki & another (2015) e KLR.

These are:

1. The prosecution must have been initiated by the Defendant.

2. The proceedings must have been terminated in favour of theplaintiff.

3. There must be an absence of reasonable and probable cause.

4. There must be malice or a propose other than that of carrying the law into effect.

30. The evidence on record is clear that the 2nd defendants agents initiated the arrests and prosecution of the plaintiffs.

There is no evidence that the police being the 1st defendants agents investigated the 2nd defendants complaints at all, but only acted on instructions thus leading me to the findings that there was no probable or reasonable cause to arrest and prosecute the plaintiffs.

31. I have stated earlier that the 2nd defendants had lost the court case in the ruling delivered on the material day in favour of the church members including the plaintiffs.

They must have been unhappy and upon a report being received by the Rev. Eseme and Rev. Ochola, that the church members were celebrating their victory at the church compound, decided to cut the celebrations short by instructing the police officers to descend upon them, arrest and charge them for some fictitious offences.

These actions can only be explained and construed as malice. No other purpose can be implied and none was demonstrated.

32. The above findings are battressed more by the trial courts ruling in criminal case No. 3243 of 2005 against all the plaintiffs and delivered on the 18th October 2007 that:

“for now the court finds that the charges cannot stand and there is no need to place the accused persons on their defence. The 7 are acquitted of the 2 charges under Section 210 of the Civil Procedure Code.”

Having rendered as above, it is my finding that the plaintiffs were unlawfully and maliciously prosecuted.

33. I want to quote Page 2 of the Trial Magistrate's ruling.

“---The prosecution evidence is that many people ---the charge sheet does not mention that the damage was done jointly with others --- what the accused persons may have done is act in a non Christian manner, and the court will reprimand them for that ---”

34. I am minded that an acquittal on a criminal charge is not perse a sufficient ground to hold that it was malicious. Spite or ill-will, and malice must be proved against the prosecutor.

So did the police (1st defendant's agents) have a probable and reasonable cause to arrest and charge the plaintiffs?

Probable and reasonable cause is defined ably by Hawkins J in Hicks -vs- Fawkner (1878) I QBD 167 that:

“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 any ordinary prudent and cautious man placed in the position of the accuser, to the conclusion that the accused was probably guilty of the crime imputed---.”

35. The pastors churchhouse and compound may have been invaded by the church members and some destruction of property ensued.

But none of the 2nd defendants and their witnesses identified any of the plaintiff's as the culprits. Without repeating myself unnecessarily, the Rev. Eseme pointed out to the 1st defendants police officers which persons to arrest, yet it is them(Pastor Eseme) who called them and invited them into the house. Those acts are no consistent with a reasonable and probable cause. Nobody testified having seen any of the plaintiffs commit the offences they were charged with.

I am satisfied that the plaintiffs have discharged the burden placed upon them by proving that their arrest was unlawful and was without any probable and reasonable grounds, thus making it malicious. See Chrispine Otieno Caleb -vs- Ag. (2014) @ KLR.

36. ISSUE NO 4.

The plaintiff no doubt suffered under the hands of the 1st Defendant's agents as guests of the state(police station) for a night and court attendances for a two year period and all incidental financial costs flowing therefrom.

It was submitted that their reputation was tarnished by other fellow church members, being portrayed as thieves, rebels and criminals.

The 1st plaintiff was a respectable church treasurer from1995-1995.

The 4th plaintiff served as a church elder and deacon for 9 years.

The 5th plaintiff had served the church as vice secretary for 5 years and secretary for 20 years.

The prosecution of these plaintiffs was open to the public.

I have considered evidence tendered as to defamation of their characters and reputation.

The defendants did not challenge the evidence of defamation or raise any of the defences to mitigate the situation and the damages sustained. Indeed the defendants failed to submit on quantum of damages should the court find the defendants liable.

37. I now proceed to interrogate the separate claims on damages.

(a) Damages for unlawful arrest and malicious prosecution

In assessing damages for malicious prosecution, the court is obligated to

“take into account the defendants motives, conduct and manner of committing the tort, and whether the defendant acted with malevolence or spite or behaved in a high-handed malicious insulting or aggressive manner.”

See Abdulhamid Ebrahim -vs- Municipal Council of Mombasa (2004) e KLR where Maraga J ( as he then was) rendered as above. He added that the court may also look at the defendants conduct upto the conclusion of the trial.

38. The evidence on record suggests that the plaintiffs were arrested and maliciously prosecute in retaliation to the lose of the court case against the church members by the Trustees.

The conduct of the defendants through the prosecutor is one of high handedness, evidenced by twice substitution of the charges perhaps to inflict more pain and spite to the plaintiffs, and further damaging their feelings. I have considered submissions by the plaintiffs advocates. For each of them, it is suggested a sum of Kshs.200,000/= as damages.

39. I have considered the status of the plaintiffs in the church community and the society. No financial loss was demonstrated nor any suffering to their reputation due to the torts were demonstrated.

However, they must have suffered indignity and humiliation especially among the other church members. This is inferred as the natural and foreseable consequence of the defendants actions.

A plaintiff who has succeed in his claim is entitled to damages in terms of monetary award that would be possible to make good what he has suffered as a result of the wrong done to him. (Stephen Gachau Githaiga -vs- Ag. & Another (2015) e KLR.

40. Accordingly, I assess general damages to each of the 7 plaintiffs in the sum of Kshs.200,000/= against the 2nd defendants. In doing so, I have considered the case Thomas Mboya Oluoch & Another -vs- Lucy Muthoni Stephen & Another where J.B. Ojwang (as he then was) warded Kshs.300,000/= to the plaintiffs for malicious prosecution.

41. (b) Aggravated damages for malicious and unlawful arrest & detention

I have been urged to award to each of the 7 plaintiff's Kshs.500,000/=on account of the defendants conduct during and before the malicious arrest, detention and prosecution (See Abdulhamid Ebrahim Ahmed case- Supra).

The plaintiffs being members of the 2nd defendant church were under a duty to adhere to the rules and regulations governing the church as per its constitution. They were not entirely faithful to their constitution leading to the cases that were filed pitting the church members, and the leadership.

42. This is not to say that they ought not question poor leadership of the church. I therefore find that awards of aggravated damages are not appropriate in the circumstances.

See Ken Odondi & 2 Others -vs- James Okoth Omburah & Co. Advocates (2013) e KLR.

43. (C) PUNITIVE DAMAGES

These damages are awardable in two situations:

a) Where there is oppressive arbitrary or unconstitutionalaction by servants of the government.

c) Where the defendants actions were calculated to procure some benefit, not necessarily financial at the expense of the plaintiff.

There is no doubt that the arrest, detention and prosecution of the plaintiffs were oppressive and arbitrary.

The Attorney General's agents did not investigate the complaint or at all, but acted purely on instructions by the 2nd defendant wrongful.

44. In Njuguna -vs- A.G & Others HCCC No. 2007 (2001) LLR 4988, J Ransley (as he then was) granted a sum of Kshs.300,000/= as punitive damages for malicious prosecution of the plaintiff.

I shall allow a sum of Kshs.100,000/= to each of the 7 plaintiffs against the 1st defendant, who ought to have investigated the complaint before the arbitrary arrest detention and prosecution of the plaintiffs.

45. The plaintiff's pleaded for damages for defamation. They did not however call any evidence regarding the damages to their characters or reputation or loss of financial prospects.

No witnesses were called to state how a reasonable person walking on the streets or other church members viewed them in regard to the malicious prosecution.

They did not prove any injury to their reputation other than making mere statements to that effect. The mere arrests, detention and prosecution are not enough in themselves to impute damage to character and reputation.

(SeeHosea Wilfred Waweru -vs- NSSF board of Trustees.

The plaintiff's proposed damages for Kshs.250,000/= for each of the plaintiffs and also cited the case Joseph Mumo -vs- AG (2008) @ KLRwhere a sum of Kshs.300,000/= was awarded.

46. The law in regard to defamation requires that it ought to be pleaded with particularity, and to be proved on a balance of probabilities. I have looked at the plaint initiating this case.

The main claims against the defendants are based on the tort of unlawful arrest, detention and malicious prosecution.

47. I have not seen a claim for defamation. It only appears in the prayers No (d). No particulars of defamation are stated in the plaint. The case is not based on defamation, but on the malicious arrest and prosecution.

If a plaintiff claims that the malicious prosecution has damaged his character and reputation, he must provide some evidence that tends to prove such damage. No evidence was lead by the plaintiffs to that effect.

I therefore find no basis upon which I can grant damages for defamation.

In similar circumstances, in Kenya Flourspar Co. Ltd -vs- William Mutua Masere & Another (2014) e KLR, the court failed to award damages for defamation. 48. Having conclusively determined the issues as framed, I came to the conclusion that the plaintiffs have sufficiently proved their claims against both the 1st and 2nd defendants on a balance of probability, the required standards.

49. Accordingly, there shall be judgment entered for each of the 7 plaintiffs individually against the 1st and 2nd Defendants as follows:

1. General damages for unlawful arrest, detention and malicious prosecution - Kshs.200,000/= against the 2nd Defendant.

2. Aggravated damages for malicious and unlawful arrest and detention - NIL

3. Punitive damages – Kshs.100,000/= against the 1st Defendant to each of the 7 plaintiffs.

4. General Damages for defamation -NIL

5. Interest on court rates on (1) and (3) above from date of this judgment.

50. Costs of the suit shall be borne by the Defendants jointly and severally.

Dated and Signed this 29th Day of September 2017.

J.N. MULWA

JUDGE

Delivered on this 12th Day of October 2017.

R. LAGAT KORIR

JUDGE