daniel francis kisoka vs philemon hatari tano 2 others 2023 tzhc 21673 21 august 2023

UNITED REPUBLIC OF TANZANIA

JUDICIARY

HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM I CIVIL CASE NO. 242 OF 2019

DANIEL FRANCIS KISOKA PLAINTIFF

VERSUS PHILOMEN HATARI TANO 1®^ DEFENDANT GAYDON CPRIAN MTENGA 2^0 DEFENDANT MANTRA TANZANIA LIMITED 3^° DEFENDANT

JUDGEMENT Date oflast order: 15/08/2023 Date ofJudgement: 21/08/2023 BEFORE G. P. MALATA. J ! The plaintiff, one Daniel Francis Kisoka, filed the present suit in this court claiming for; i. Payment of TZS 1,941, 049, 993.08 being special damages for malicious prosecution, ii. Payment of TZS 20,00,000 being exemplary damages. Page 1 of 35 |iii. Payment of general damages as be assessed by the court, iv. Cost of the suit, V. Interest on decretal amount from the date of judgement until payment in full vi. Any other reliefs as the court may deem it fit and just to grant In nutshell; the plaintiff concluded a contract of employment with the defendant bn 10^^ November, 2015 as an accountant commencing on November,, 2015. The 1^^ and 2^^ defendant are employees of the 3''^ defendant at the capacity of heads of Human Resource Department and Finance manager, respectively. It is alleged that, on 29'^'^ August, 2017 the 1^*^ defendant acting on instruction of the 2"^ and defendants invoked criminal machinery for allegedly loss of money totaling USD 4000 and TZS 9,456,500 being the property of the defendant. Further, thb plaintiff conducted verification and he confirmed the loss of said I amount. This is gathered from his signed report witnessed by the 2"^^ defendant (Exhibit DEB). Page 2 of 35 The plaintiff was named a prime suspect for stealing as he was responsible and accountable for

inter alia; one, day-to-day Management and control the Dar office petty cash, site petty cash and maintain the necessary float, and making suije that reconciliation is done and proper record keeping is maintained,; two. Prepare daily/ weekly and monthly bank reconciliation and verify the bank charges, three. Control all staff advance accounts by doing monthly reconciliation, and ensuring that staffs clear their advances timeiy I in line withi financial policies, four. Collect expense receipts from site and upload them into accounting system as per the standard operating procedure. Five, accountabie for payroll preparation on monthly basis and perform redonciliation of all payroll related accounts, six. Control the daily data input for the operative accounting system ensuring accuracy, seven, control the reconciliation of the General Ledger on a monthly basis and eight, ensure all the records and documents are filed appropriately. The said money belonged to the 3^^ defendant, thence matter was reported I to the police station, Oysterbay police post for investigation. The missing of money was discovered during financial audit in books of accounts conducted by the 2"^ defendant, thus linking the plaintiff with stealing of said amount. Page 3 of 35 As result, the plaintiff was arrested and prosecuted by the Director of Public Prosecutions through Criminal Case no.482 of 2017 of the

District Court for I Kinondoni. On conclusic)n of hearing and assessment of the prosecution evidence, the District Court for Kinondoni found no case established against the plaintiff herein to warrant him enter a defence. As result, 28^^ December, 2018 the i plaintiff was discharged under section 230 of the Criminal Procedure Act, Cap.20. R.E.2022. In view thereof, on July, 2019 the plaintiff instituted the present case raising, inter alia, claims for payment of TZS 1,941, 049, 993.08 being special damages for malicious prosecution, Payment of TZS. 20,00,000 being exemplary damages, general damages and other ancillary claims. To prove the claims, the plaintiff lined one witness, Daniel Francis Kisoka (PWl) the plaintiff himself and tendered a total of eight exhibits, while the I i defendants paraded a total of four witnesses. The plaintiff's testimony was to the effect that, he was employed with the defendant as the accountant on 27^^ October 2015 on permanent and pensionable basis, the 1^^ defendant was an employee of the 3''^ defendant Page 4 of 35 holding the post of Head of Human resources department while the defendant holds the post of Finance manager. He stated that had it not been for malicious prosecution by the defendants which culminated in the termination of the contract he would have retired in 2032. He testified that, on 29*^^ August 2017, the defendant on

instruction from the 2"^ defendant reported to the police station, Oysterbay Post, that the plaintiff had stolen money from the defendant, that is, TZS 9,456,500/- and USD 4000 and that on 25^'^ July 2017, the 2"^ defendant had conducted audit and confirmed that the plaintiff had confessed to have stolen the money on 25^^ July 2017, the allegation which is false and maliciously made as there was no such theft or any confession from him and that the 2"^ defendant is not an auditor. He further stated that, on 25^*^ July, 2017 he was exempted from duty following his sickness of which the and 2"^^ defendant was aware of. Based on the allegation and complaints by the and 2'^^ defendant he was arrested for theft and later on prosecuted in criminal case no. 482 of 2017 in the District Court for Kinondoni. The plaintiff was later acquitted as he had no case to answer. That, the report and the prosecution was initiated by ill Page 5 of 35 motive on the part of the and 2"^ defendant who are the employees of i the defendant, as they were aware that he was sick from 11th July, 2017 and he was not in the office as I was to return on the 26th July, 2017. That it is only after the report to the police that on 20th September, 2017, the 2"^ defendant purported to appoint the external auditor (Claritas international) to conduct a forensic audit only from 1'^ June, 2017 to 25th July, 2017.

The appointment of Claritas International was done maliciously by the 1^ and 2"^ defendants. The 1'^ and 2"^ defendants were not authorized to do so by the 3'"'^ defendant and that the audit engagement agreement was made I purposely fo|r the presentation of the outcome report to the court and to convince the auditors to appear in court to prove the theft which could not be established with reconciliation as per accounting standards. The plaintiff tendered various exhibits to substantiate existence of malicious prosecution and damages of TZS 1,941, 049, 993.08 being special damages for malicious prosecution. Payment of TZS. 20,000,000 being exemplary ! damages, general damages and other ancillary claims as particularised in paragraph 20 of the plaint. Page 6 of 35 Finally, he prayed to be awarded the amount claimed as he has managed to prove existence of malice on the defendants' side. This marked the end of the plaintiff's case. The defendant stated that, he is the former Human Resources Manager of the 3^^ defendant dealing with all Human Resources and other administrative matters in 3''^ defendant's company. The plaintiff was an employee of the defendant since November 2015 in the position of accountant until 29^*^ August 2017 when he was terminated on allegations of misconducts following missing cash under his custody as among his roles was to manage and control Dar es Salaam

office petty cash, site petty cash and make sure that reconciliation is done and proper record keeping was done. The plaintiff was given Cash TZS.10,026,500 and USD 4,688 as appeared on general ledger balances and when the normal cash counting was done by 2"^^ defendant and plaintiff on 27^^ July, 2017 USD 4000 and TZS 9,456,500 were missing and plaintiff was given two weeks from 31^^ July, 2017 to account for such missing cash but he could not do so up to 14'^'^ August, 2017. Page 7 of 35 As responsible officer mandated by defendant, he reported the incident to police who conducted their investigation and finally they decided to arrest the plaintiff and took him to court. As Human Resources Manager of the 3'"'^ defendant he just reported the incident to Oysterbay police post and from there he had ino any control on how criminal investigation was conducted, what were the findings, how decision to take the plaintiff to court was made and how the prosecution was conducted. His duty was just to report the incident of the missing cash as there were reasonable and probable cause to report the missing cash and it was also the requirement of 3^^ defendant's internal policy. He further stated that, it was the 3^^ defendant who appointed auditor after it came to his knowledge that there is missing cash which was under the custody of the plaintiff. The plaintiff Tailed to explain the

where about of the missing cash despite been given two weeks, the 3^^ defendant's management initiated internal disciplinary hearing which ended with termination of the plaintiff. On the basis of what he stated, the defendant prayed for the case to be dismissed with costs as he had reasonable and probable cause to report for the missing cash. Further the plaintiff was given remedy for reinstatement to Page 8 of 35 employment without loss of remuneration on his labour case as explained above. The defendant, Gaydon Cyprian Mtenga testified that he is the finance manager of the 3''^ defendant dealing with financial management of the defendant's company and line manager of the plaintiff while working with 3^^ defendant. The plaintiff was an employee of the 3^^ defendant and he was terminated on allegations of misconducts following missing cash under his custody as among his roles was to manage and control Dar es Salaam office petty cash, site petty cash and make sure that reconciliation is done and proper record keeping was done. I 1 ! The plaintiff was reporting to the 2^'^ defendant as his line manager and cash counting was a normal exercise done between him and the plaintiff who was I responsible for managing and control of petty cash in our office and after counting the prescribe form was to be signed by myself as supervisor and the plaintiff, i As the finance manager, the 2^^

defendant knew that the plaintiff was given Cash TZS.10,026,500 and USD 4,688 as appeared on general ledger balances and when the normal cash counting was done by himself and plaintiff on 27^^ July 2017 USD 4000 and TZS 9,456,500, it was discovered Page 9 of 35 that, the saidiamount were missing and he acknowledged and signed cash i counting form', the plaintiff was given two weeks from 31^^ July 2017 to account for such the missing cash but he could not do so up to August 2017. I ! Following company's policy in case of missing cash, the matter must be reported to police, the 2'^^ defendant reported the matter to the management and then thd matter was reported to police. That as responsible officer mandated by. 3'"'^ defendant to manage the finance department responsible for management of 3^*^ defendant's assets including cash reported the j incident to the management for necessary action as per the law of the i ■ country and icompany's internal policies. He did so under his role as the Finance manager as there were reasonable and probable cause to report the i missing cash!to the management. Chrisant Christopher testified as DW3 and stated that he is the certified public accountant working with Claritas International certified public accountants as Partner. That on 20^*^ September 2017 Mantra Tanzania Limited engaged Claritas International to conduct and agreed -upon

audit procedures on alleged petty cash loss at the head office of mantra Tanzania Limited. , Page 10 of 35 The audit was jconducted from 20^^ September 2017 to 22"^ September 2017. That the verification of the cash per general ledger indicated book balance on 25^^ July 2017 were TZS 10,026,500 and USD 4,668 when compared to the physical cash the Tanzanian shillings vault had TZS 570,000 and USD ! ■ ■ vault had USCj 688.The balance were supported by the results of cash count I i conducted byi Daniel KIsoka and witnessed by Gaydon Mtenga. That when i cash book balance was compared to the physical balance Indicated cash loss of TZS 9,456,500 and USD 4,000. That during the Interview with the plaintiff conducted on 5^^ October, 2017 It was obser\|ed that, the plaintiff was the only custodian of both TZS and USD petty cash vaults during the period from June 2017 to 25'^'^ July 2017. i That, It was their finding that the role description document for an I accountant signed by the plaintiff on Sl^'^ March 2016 requires the custodian to prepare cash reconciliations on dally basis, weekly basis and monthly basis. However,they noted that no petty cash reconciliations were prepared by the petty cash custodian (the plaintiff) during the period from June 2017 to 25^'' July 2017 on dally basis, weekly basis or monthly contrary to the requirements of his role's description document. Page 11 of

35 The fourth defendant, Dua Mbapila Rwehumbiza testified that she is the I Legai Service! Manager of the 3"^^ defendant deaiing with iegai and administration matters of the Defendant's company and iine manager of the piaintiff whiie working with 3'^^ defendant. As per the company's policy in case of any m ssing cash the matter must be reported to police, he reported I the matter to the management and then the matter was reported to police. She testified as the legal service manager of the 3^^ defendant, when it came to the defendant knowledge that there was some cash missing. The piaintiff failed to explain the whereabouts the missing cash and the matter was i reported to tt^e police who conducted the investigation. The third defendant i had no any control on, how criminal investigation was to be conducted, how ! ! the prosecution was conducted and how the decision was arrived at. He finally, prayed for the suit to be dismissed. This marked the end of defendant's case. Upon finaiization of hearing, the court invited the counsels for both sides to file final submission for and against. Both of them compiled accordingly. In i support of the plaintiff's case, Mr. Chuwa learned counsel for the plaintiff cited the case of Jeremiah Kamama vs. Bugomola Mayandi [1983]TLR 123 and the case of Kagane and others vs. Attorney General and Page 12 of 35 others[1969] EA 643, and stated that

there is no dispute that the plaintiff I. was prosecuted and the prosecution ended in favour of the plaintiff, thus the first two conditions for malicious prosecution were been proven accordingly. On the presence of reasonable cause, the plaintiff stated that, if there was a reasonable 'and probable cause for prosecution, the defendants wouldn't ■ . i have failed to! provide the attendance register and the general ledger or the petty cash which would show that, first the plaintiff was at the office on the material date and that he was given such amount of money. No report from the security department who had the duty to investigate the suspicion of crime. I ■ • Further, they submitted that the plaintiff had excused from duty by the hospital thus he was absent on the days alleged to have been present in office. They referred to Exhibit P4. On the issue of malice, Mr. Edward Peter Chuwa, assisted by Anna Lugendo both learned counsels submitted that, there was malice The plaintiff further stated that there was malice on part of the 2"^ defendant as the plaintiff was more qualified than him, the 2^"^ defendant had no university degree thus he reported the matter because the plaintiff was a threat to his managerial post. Page 13 of 35 and that is proved by the acts of the defendants, they bypassed the security department and there was no formal appointment of DW3 as external

auditor both in criminal and these proceedings. These were among the key evidence and submission relied upon by the plaintiff. Mr. Innocent iMushi learned counsel for the defendant submitted that, the defendants h;ad all reasonable and probable cause of believing that the I I plaintiff was responsible for the loss of money due to his job description. He cemented the submission by citing various pieces of evidence such as Exhibits PI and DE3. Furthermore, he submitted that, there was no sick sheet issued by the defendants proving that the plaintiff was sick. 1 As to the issde of malice, he submitted that the answers are allied with the issue of reasonableness and probable cause, thus there was no proof of malice of defendants in the circumstances, thus the defendants were justified. Having summarised in brief what transpired in this case from the start to the end,lam now placed to determine the matter before me based on the issues raised. The issues are; Page 14 of 35 1. Whether the prosecution by the defendants against the plaintiff was malicious iI 2. If answered in issue no 1 herein above is in the affirmative, whether the plaintiff suffered damage of both specific and general.

3. To whit relief(s) are the parts entitled to. ■ I To start with, it is trite law that, whoever desires any court to give judgement i as to any legal rights or liability dependent on the existence of facts which he asserts must prove that those facts exist. This is echoed by sections 110, 112, 115 of the Law of Evidence Act, Cap 6, RE 2022. Section 110 provides that; ■ I I I (1) Whoever desires any court to givejudgement as to any iegai right or iiabiiity dependenton the existence offacts which he asserts must i 1 prove that those facts exist (2) When a person is bound to prove the existence of any facf it is said that the burden ofprooflies on thatperson. 1 Section 112 provides that; ''The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence^ uniess Page 15 of 35 it is provided by iaw that the proof of that fact shaii He on any other person. Section 115 provides that; ; '7/7 civii proceedings when any fact is especiaiiy within the j j knowiedge ofanyperson, the burden ofproving thatfact is upon him. In response to the first Issue, the complaint In the present suit Is rooted from malicious prosecution. The plaintiff claims for specific and general damages arising from the same. In order to attain the claims, the plaintiff will be required to p rove first existence of all Ingredients of malicious prosecution, The High

cou t and Court of Appeal have already set the principles governing proof of the two facets. In proving malicious prosecution, the court of appeal In Yonah Ngassa Vs Makoye Ngassa(2006)TLR 2013, principled that; "It is nop sufficient for a piaintiffthat he was innocent ofthe crime for which he was prosecuted by the defendant, by proving that the prosecution terminated in his favour; he must show aiso that the defendant acted maiiciousiy and without reasonabie and prpbabie cause Page 16 of 35 In the same decision the court of appeai reaffirmed the position by the Author, Saimond and Houston on the book titied The Law of Torts,(21ed), I Sweet & Maxwell, R.E.V. Houston and R.A. Buckley at page 393 where the author numerated ingredients of malicious prosecution namely; t 11. There must be proceedings instituted or continued by the defendant, \2. The proceedings must have been unsuccessful- that is to i I I say, must have terminated in favour ofthe plaintiffnow suing. I 3. The defendant must have acted without reasonable and probable cause, 4. The defendant must have acted maiiciousiy; \ 5. The plaintiff must have sustained damages. I Further in the case of William Chamapwa v. Francis Bitegeko [1975] LRT n.36 thb court held that, to succeed in an action for damages for I malicious prosecution, the plaintiff must prove that; j a) The prosecution wasinstituted or carried on such

proceedings I j maliciously and without reasonable and probable cause. Page 17 of 35 (b) The proceedings complained ofterminated in the plaintifTs ■ fa vour^ and (c) The plaintiffhad suffered damages. Further in Hialsbury's Laws of England(3 ed)Volume 25 page 361, it is stated that; 'The burden of proof in an action for damages for maiicious prosecution iies in the first instance on the piaintiff. It is not sufficient for him to prove that he was innocent of the crime for which he was prosecuted by the defendant by proving thatthe prosecution terminatedin hisfavour. He must show that the defendant acted maiiciousiy and withoutreasonabie and probabie cause." In proving the first iimb on element of maiicious prosecution, the plaintiff is first, required to demonstrate and prove that, there was prosecution by the defendant or it is the defendant who did set the law in motion against the plaintiff. Irp the present case, the defendants herein are the ones who initiated criminal proceedings against the plaintiff including reporting the matter to Government investigation organs. Page 18 of 35 Second, proceedings must have been terminated in favour of the plaintiff. In a suit for damages for malicious prosecution, it is essential to show that the proceedingS'Complained of terminated in favour of the plaintiff. However, termination in favour of the plaintiff does not mean judicial

determination of his innocence, it means absence of judicial determination of his guilt. Third, the plaintiff is required to prove that, the defendant prosecuted him without reasonable and probable cause. In Hicks v Faulkner, Hicks v Faulkner 1878 8 QBD 167 where Mr. Justice Hawkins, defined reasonable and probable cause as "An honest belief in the guiit of the accused based upon a fuii conviction, founded on reasonable grounds, of the existence ofa state ofcircumstances, which assuming them to be true, wouid reasonably lead to any ordinarily prudent and cautious man,placed in the position ofthe accuser, to the conclusion that the person charged was probably guilty ofthe crime imputed" The question relating to want of reasonable and probable cause in a suit for malicious prosecution should be decided based on all facts before the Page 19 ot 35 Court and the onus of proof of absence of reasonable and probable clause rests on the ■plaintiff. Reasonable cause can be established when the foilowing conditions exist; I i. The defendant must beiieve that the accused is probabiy guiity of the offence; ii. The belief must be founded upon information in the possession of the defendant pointing to such guilt, not upon mere imagination or surmise; iii. The information, whether it consists of things observed by the defendant or things told to him or her by others, must be beiieved by him or

her to be true; iv. The beiief must be based upon reasonabie grounds; V. the information possessed by the defendant and reasonably believed by him or her to be true, must be such as would justify a person of ordinary prudence and caution in beiieving that the accused is probabiy guiity. The existence of reasonabie and probable cause is of no avail if the prosecutor prosecuted in ignorance of it. The dismissal of a prosecution or Page 20 of 35 acquittal of the accused does not create any presumption of the absence of reasonable and probable cause. Forth, the proof that, the defendant acted maliciously. Another essential element which the plaintiff is required to prove is that, the defendant acted maliciously in prosecuting him and not with a mere intention of carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper purpose which motivates the prosecutor, such as to gain a private collateral advantage. i I In the case! of Bank of India v. Lekshmi Das (2000)3 SSC 640, the Court stated that, in malice, absence of reasonable and probable cause must be proved. The proceedings complained of by the plaintiff must be initiated in a malicious spirit that is from an indirect and improper motive and not in furtherance of justice. Malice may be inferred upon proof of absence of honest belief in the accusation

and consequent want of reasonable and probable cause. Fifth, the plaintiff must prove that he suffered damages as a result of the prosecution. This element highly depends on prove the other four elements Page 21 of 35 of malicious prosecution. The court is just placed to determine that, following I proof of other element then whether as result of, the plaintiff suffer damages which should be a result of existence of absence of reasonable and probable i cause and malice. In other words, how the piaintiff was affected foiiowing the proof of existence of malicious prosecution. Such damages may accrue from the plaintiff being remanded, existence of mental anguish, loss of freedom, character assassination, any pecuniary damages and any other closely related damages. All in all, th^ grant of the same will depend on proof of other ingredients of malicious pr|osecution, as nothing can be born from nothing. I On the second aspect, which the plaintiff is claiming special which he is required to prove strictly. In the case of Bamprass Star Service Station Limited vs. Mrs Fatuma Mwale,[2000] T.L.R 390 the court had one stated that; ,"It is trite iaw thatspecial damages being "exceptionai in their character" and which may consist of "off-pocket expenses and ioss ofearnings incurred down to the date of Page 22 of 35 trial" must not only be claimed specifically but also "strictly

proved". Further in the case of British Transport Commission v. Courley [1956] AC 185 at 206 where it was held: '7/7 an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damages, which has to he specifically pleaded and proved. This consists of out-of-pocket expenses and loss ofearnings Incurred down to the I " date of the trial and Is generally capable of substantially exact calculation. Secondly there is general damages which the iaw implies and is not speciaiiy pleaded. This includes compensation for pain and suffering and the iike, and, ifthe injuries suffered are such that as to iead continuing or permanent disability, compensation for j ioss ofearning power in the future." In determining the case at hand, this court will be guided by among others the above point principles of law. Page 23 of 35 Based on the evidence adduced by both parties, It Is undisputed that, upon verifying the Indoor cash Information of the defendant. It was revealed i that, there was missing money totalling TZS 9,450,500 and USD 4000. The question which came out Is who may responsible for the loss and why? I The plaintiff Was named a prime suspect as an accountant responsible for cash management of the 3""^ defendant. In view thereof, the defendants reported the loss to the Police officers who In return Invoked

Investigation machinery which led to filing of Criminal Case No.482 of 2017 In the District Court for KInondonI against the plaintiff for stealing. (Exhibit P3 depicts). I Further, the i loss of the said money Is supported and confirmed by cash accounting report or cash accounting form signed by the plaintiff as author and witnessed by the 2"*^ defendant. Exhibit DE3 describes. Unhesitatingly, I now start to respond on proof of the Ingredients of malicious prosecution. The first and second Ingredients of malicious prosecution on existence of criminal case no.482 of 2017 against the plaintiff which ended In favour of the plaintiff have been proved beyond sane of doubt. The proof Is gathered from exhibit P3 the judgement of the said criminal case In which the District Court for KInondonI acquitted the plaintiff Page 24 of 35 for want of pri^a facie case under section 230 of the Criminal Procedure Act, I Cap.20 R.E. 2d22. i The third ingredient of malicious prosecution is on absence of reasonable and probable cause of the defendants taking such action against the plaintiff. I The plaintiff is required to prove absence of reasonable and probable cause on the part of the defendant taking such measures. He has to prove that; the defendant did not act honestly but with evil or bad intention while intending to achieve certain goal. There should be no belief that, certain act amounting

to an offence has been committed by the plaintiff. To the contrary, thd defendant must have acted with evil intention against the plaintiff. The evidence on record depicts that; one, the plaintiff was an employee of the defendant at the capacity of accountant with contract of employment with no specific period of time. Exhibit PI describes, two, the main duties of the plaintiff as an accountant included; i. Prepare withholdings Tax returns on a monthly basis and reconcile against the generalledger, Page 25 of 35 n. Manage and control the Dar office petty cash^ site petty i cash and maintain the necessary fioat, and making sure 1 thatreconciliation is done and proper record keeping is maintained, i Hi. Prepare Bank of Tanzania and Citi Bank Returns, inciuding aii back up documentation, iv. Participate fuiiy in aii audits by both Tax authorities and externai auditors. V. Maintain copy ofaii documents with input VA Tand prepare documents for the VA T return. \ \ vi. Liaise with PWC on aii tax matters a required. vii. Ensure bi-annuai tax returns for PA YE, W/Tax and SDL are timeiy fiied. via. Prepare daily/ weekly and monthly bank reconciliation hnd verify the bank charges. ix. Prepare statutory tax documents and returns, reconciiing i import duty, W/Tax, VA T, and aii other reievant taxes. Page 26 of 35 X. Controlallstaffadvance accounts by doing monthly reconciliation^ and

ensuring thatstaffs dear their advances timely in line with financialpolicies. xi. Collect expense receiptsfrom site and upload them Into accounting system asper the standard operating i procedure. xii. Accountable for payrollpreparation on monthly basis and perform reconciliation ofallpayrollrelated accounts. I i xiii. Captures Mpesa payments in Mpesa module. I xiv. Captures supplier and employees'payment in Citi direct XV. Assist with the preparation ofthe requisite tax returns and payment ofSDL, PAYE, Withholding tax, NSSFand PPF xvL Control the dally data Inputfor the operative accounting system ensuring accuracy. xvU. Control the reconciliation ofthe General Ledger on a i monthly basis xvUL Ensure all the records and documents are filed appropriately Page 27 of 35 The above job; description of the plaintiff is provided and evidenced by item i 3 of Exhibit PI, Exhibit DE3 page 18 of extracted audit report by Claritas and Exhibit DE4 called role Description of accountant. Three, on 25^'' July, 2017 there was established petty cash loss from June, 2017 to 25^^ July, 2017 to the tune TZS 9,456,500 and USD 4,000, four,the observed loss was again verified by the plaintiff and witnessed by the 2"^ defendant and said the report confirmed the complained loss. Exhibit DE3 describes. Five, based on the evidence in Exhibit DE3 there was no dispute between the plaintiff and defendants

that there was missing or loss of TZS 9,456,500 I and USD 4,000 the property of the 3'"'^ defendant, six, that evidence by PWl and DWl, DW2, DW3 and DW4 and Exhibits PI, DE3 and DE4 are undisputed that, the person who was engaged and accountable for direct management and control of the Finances and keeping daily, weekly monthly and annual reconciliatioh of all money of the 3^^ defendant is the plaintiff herein, seven, that on noting the said loss which fall within the hands of the plaintiff, the i defendants reported the matter to police post for further steps and action. Exhibit P2 elucidates. Page 28 of 35 eight, upon investigation and being satisfied that, there was evidence of missing or loss of TZS 9,456,500 and USD 4,000 as confirmed by Exhibit DE3 comprising of the attached documents by the plaintiff indicating the existence of the complained loss, nine, that the Republic prepared a criminal charge for stealing by servant against the plaintiff herein contrary to section 271 of the Penal code Cap.16 R.E.

2022. Ten, upon hearing criminal case no 482 of 2017 against the plaintiff, the District Court for Kinondoni ruled that, a prima facie case was not established to warrant the plaintiff enter a defense, thus dismissing the case under section 230 of the Criminal Procedure Act, Cap.20 R.E.

2022. Eleven, the accused came to this court lamenting and claiming for malicious prosecution against the defendants herein, thus praying to be paid a total of TZS 1,941, 049, 993.08 being special damages for malicious prosecution and Payment of TZS 20,00,000 being exemplary damages, inter alia. Twelve, that there is no document produced by the plaintiff that the defendants had given him excuse on duty for the period of loss. Further, there is neither sick sheet by the defendant nor office handover report by the plaintiff showing that he was absence during the period in question Page 29 of 35 of the Plaint. Tifie plaintiff particuiarized the claims for payment of TZS 1,941, i I 049, 993.08 being special damages for malicious prosecution. Payment of TZS. 20,00,000 being exemplary damages, general damages and other incidental claims. The above ciaims are supported by, among others, exhibits PI and P6. 1 j i For the piaintjiff to succeed for claim of damages arising from maiicious I prosecution, ijie must prove existence of the four ingredients of malicious prosecution that is to say; one, that the defendant instituted criminal case j I against the plaintiff, two, the case ended in favour of the piaintiff, three, j the defendant acted in the absence of reasonableness and probable cause and four, malice on the defendant's party. In iine with the evidence adduced, this court is

satisfied beyond sane of doubt that, the plaintiff has failed to prove damages against the defendants. It is evident that, the plaintiff was not abie to prove absence of i reasonabieness and probable cause and presence of malice against the i defendants. This could have been the entry point in proving damages as i claim depended on proof of existence of the four ingredients of maiicious prosecution.^ This court is of the opinion that, such damages cannot exist in the absence prove of such ingredients. Nothing can be born from nothing. Page 33 of 35 Therefore, it goes without saying that, the claim for damages which depended on the proof of those elements, cannot withstand at all. j ] Notwithstanding what is settled herein above, DWl, DW2 and DW4 testified that there is pending appeal in the court of appeal on labour matters demanding for among others issues of reinstatement and compensation. Certainly, the plaintiff is driving two horses at a time, ail of which are leading to payment of damages. Having said all what I wanted to say, I am of the settled view that, the plaintiff has fjailed to prove the case for malicious prosecution against the I defendants based on the well-reasoned judgement herein. Consequently, I i hereby dismiss the suit with costs. IT IS SO ORDERED. DATED at E^AR^ES^SALAAM this 21'^ August, 2023. 'i# biuai G. p. MAl^

JUDGI 21/08/2023 Page 34 of 35 JUDGEMENTj delivered at DAR ES SALAAM In chamber this 21®' August, 2023gf=5=^. X'?4, fe/ G. P. MAUATA

JUD X 21/08/2023 Page 35 of 35